Indigent Defense In Virginia - Pay

I haven't done indigent defense work in over nine years now, so I can't claim to be the most up to date expert on the nuances anymore. Thus, when a colleague asked me some questions about the manner in which court appointed counsel are paid I had to give an answer qualified by "but I haven't looked at that statutes in at least ten years."  After that discussion, I decided to look and see what the current state of the law is and it has changed significantly since I moved over to prosecution.

To begin with, there are certain (1) requirements. An attorney (a) has to turn in a detailed accounting of his time in the case (b) within 30 days of the completion of the case. After that the attorney is paid as follows:

Court	Basic Pay Per Charge	1st Waiver	2nd Waiver
District Adult	$120	+ $120	Unlimited
District Juvenile (Misdemeanor Analogue)	$120	+ $120	Unlimited
District Juvenile (Felony Analogue)	$120	+ $650	Unlimited
Circuit Felony Death Penalty	"An amount deemed reasonable by the court"	N/A	N/A
Circuit Felony more than 20 Years	$1235	+ $850	Unlimited
Circuit Felony less than 20 Years	$445	+ $155	Unlimited
Circuit Misdemeanor	$158	+ $0	Unlimited

Basic Pay Per Charge:

District Courts: In the district courts, (2) it seems clear that (a) the defense attorney is to be fully paid for the first charge. Back when I was practicing, the defense attorney didn't even have to account for his time to get paid for that first charge. However, in 2007 the General Assembly took out the "without a requirement for accounting of time devoted thereto" language and added the "detailed accounting" language, so (b) the defense attorney must now account for his time even on that first count. (3) For charges beyond the first the defense attorney must show that he spent more time in order to get paid. 

FIRST WAIVER: For all cases involving an adult or any case involving a minor in which an adult could be punished with 20 years or less, the trial judge can pay up to another $120.  For a case involving a minor in which an adult could be punished by more than 20 years, the trial judge can pay up to another $650.

Circuit Court: There is (4) no provision for any minimal payment in Circuit Court. However, it is clear that (5) if a charge is reduced to something that would pay less the defense attorney is still entitled to pay under the original pay scale.

 FIRST WAIVER:  For all cases in which the defendant could be punished by more than 20 years, the trial judge can pay up to another $850.  For all cases in which the defendant could be punished by 20 years or less, the trial judge can pay up to another $155. No first waiver on misdemeanors in circuit court.

SECOND WAIVER - ALL TYPES OF CHARGES: 

The second waiver is unlimited. However, it has to get cleared first by the trial judge and then cleared by the chief judge of either the district or circuit.

Reasonable Expenses: There is a paragraph which is often badly misconstrued by courts in paying indigent defenders. It is the paragraph which allows defense attorneys compensation for expenses. I'll quote it here so you can read it yourself:

The circuit or district court shall direct the payment of such reasonable expenses incurred by such court-appointed counsel as it deems appropriate under the circumstances of the case. Counsel appointed by the court to represent an indigent charged with repeated violations of the same section of the Code of Virginia, with each of such violations arising out of the same incident, occurrence, or transaction, shall be compensated in an amount not to exceed the fee prescribed for the defense of a single charge, if such offenses are tried as part of the same judicial proceeding. The trial judge shall consider any guidelines established by the Supreme Court but shall have the sole discretion to fix the amount of compensation to be paid counsel appointed by the court to defend a felony charge that may be punishable by death.

Basically, this paragraph allows payment for expenses and limits payments in cases wherein the same type of charge is charged multiple times (limited to the amount that would be the fee for one charge).

However, this paragraph has been badly misconstrued by various judges who have used it to limit fees which are charged by indigent counsel. That's a poor reading of the statute. This subsection's purpose is clearly laid out in the opening sentence: "payment of such reasonable expenses." Nothing in the rest of the paragraph indicates a movement away from that purpose. In fact the word "compensate" has a shaded meaning. It could mean being paid for time lost defending the case, but that is a strained reading. Instead, a more regular reading of that language would be that the defense attorney is to be paid back for outlays she has put forth out of her own pocket.

IF THE DEFENDANT DOES NOT SHOW FOR COURT:  If (6) the defendant has (a) a capias (bench warrant) or (b) show cause summons issued, and (7) the defense attorney has appeared in court at least once, then (8) the defense attorney can get paid after the defendant has been missing for a year.

All this and more can be found in Va. Code 19.2-163.

Where Can I Carry My Firearm

Virginia, is one of those States which believes that there's not just a right to bear arms, but an obligation (at least where I live).  However, there are places and times when a person is forbidden to carry. Generally, these would fall into two areas of prohibition: private and statutory prohibitions.

The first is fairly straight forward. If a private citizen or organization specifically denies you the right to carry a firearm on its property you cannot carry a firearm on their property. The private citizen or organization would have an obligation to notify you that you cannot carry a firearm on its property, but as a non-governmental entity it has the right to restrict entry. If the private entity posts a "No Firearms Allowed" sign then it has effectively put up a no trespassing sign per Virginia Code 18.2-119. A person who walks into a store or residence past that sign knows she is specifically denied permission to be on the premises with a firearm. Then it simply becomes a matter of status. If her status is that of someone with a firearm she is in a location she is forbidden to be in. Therefore, she is trespassing.

And, before anyone starts screaming 2d Amendment at me in the comments, remember this is an interaction between a citizen and a private entity. The 2d Amendment only applies in dealings between a citizen and the government.

Statutorily, the General Assembly has passed several laws in Virginia which restrict where firearms can be carried. As these impinge on a right guaranteed in the Bill of Rights these should be subject to a strict scrutiny standard. However, the US Supreme Court has flinched away from explicitly stating that this is the standard. In fact, it has created some sort of weird, hybrid standard where citizens are entitled to own and use firearms (1) "in common use" at a set period of time, but only if the citizen does not fall into a certain (2) status (e.g. felon or mentally ill) or possess them in a (3) sensitive place (e.g. schools or government buildings). See District of Columbia v. Heller, 554 U.S. 570 (2008). I'm not going to address the first two parts of this test today; instead, I am going to mostly look at those places the Virginia General Assembly has declared by statute to be "sensitive."

A quick survey reveals the following statutes:

Courthouse:

18.2-283.1 - It is a class 1 misdemeanor (up to 12 months) for anyone except law enforcement (and the local treasurer?) to carry a firearm in the courthouse. - This makes sense in that there is a lot of emotional conflict in a courthouse and (perhaps most importantly) there is a constant possibility of an armed attempt to free an incarcerated inmate from a known location at a known time.

Schools:

18.2-308.1 - It is a class 1 misdemeanor (up to 12 months) to carry a firearm onto school grounds, a school bus, or a place where an extracurricular event is occurring. It is a felony with 5 mandatory years in prison if someone takes a firearm into a school building with intent to use it. - Hard to argue that a school isn't a sensitive place from which firearms should not be excluded.

Place of Worship:

18.2-283 - It is a class 4 misdemeanor ($250 fine) to carry a firearm "without good and sufficient reason" into a place of worship while a religious meeting is taking place. - Hmmm. Yes, this is a sensitive place, but also a private place. It seems to me that this should be something that should be decided by whomever makes decisions for a particular place of worship and handled under the trespass rules as laid out above.

Bar:

18.2-308(J3) - It is a class 2 misdemeanor (up to 6 months) to carry a concealed weapon in a place that serves alcohol if you drink any. - This is actually a mix of location and activity. It does not seem to fit the "sensitive place" restriction particularly well and perhaps is more of a status restriction (person drinking alcohol). It also does not forbid a person openly carrying from having a firearm in a place that serves alcohol.

Airport Terminal

18.2-287.01 - It is a class 1 misdemeanor (up to 12 months) to carry anything which expels a projectile in an airport terminal. - This is obviously both a public and sensitive space.

Certain Cities:

18.2-287.4 - It is a class 1 misdemeanor in public areas in the (a) cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, and Virginia Beach and in the counties of Arlington, Fairfax, Henrico, Loudoun, and Prince William to carry a (b) rifle or (c) pistol with a magazine of more than 20 rounds and a (d) shotgun which holds more than 7 rounds of its longest round. - This is a mix of the sensitive place element and the common use element. It's hard to argue that all the public areas excluded are sensitive places, so this is really more of a declaration that these firearms cannot be carried because they are not in common use. The problem with that logic is that the firearms are not forbidden everywhere.

These are all the location related bans I found. It is not an exhaustive list of limits on firearm possession and I suspect there may be some more location restrictions squirreled away in parts of the Code outside of Title 18.2 (Virginia's criminal law).

An Article 4 Free Inhabitant Doesn't Have to Have a License

Cudos to this officer. He remains calm throughout the entire incident in the face of incoherent babbling about **THE ARTICLES OF CONFEDERATION** and even when she starts screaming "rape" when he removes her from the car. [ignore the title of the video; this is not about feminism]

Prosecutorial Primacy: AG or Commonwealth Attorney?

Piedmont asked an interesting question in a comment on the prosecutorial powers of the Attorney General post:

The AG has authority to institute and conduct the enumerated types of prosecutions, but it's certainly not exclusive. What happens if both the CA and the AG want to prosecute? Can the AG step into and take over the CA's case?

The problem here begins in the Virginia constitution. A Commonwealth Attorney is a "constitutional officer" created under the local government portion of the constitution. Art. VII sec. 4. As such, the office does not fall under any branch of the government in Richmond. However, the only constitutional instruction for the office is that

"The duties and compensation of such officers shall be prescribed by general law or special act." Id.

The Attorney General, while an independent elected office, is clearly a part of the executive branch of the Richmond government created in Article V sec. 15. And yet again, the constitutional instruction as to his function is rudimentary:

"He shall perform such duties and receive such compensation as may be prescribed by law."

The language is effectively identical and therefore not very helpful to our analysis. So next we turn to the statutes.

The last post about the Attorney General examined the statute which outlines the statutory powers granted to and limitations within which the Attorney General must operate

The parameters within which the Commonwealth attorney operates are generally laid out in Va. Code Sec. 15.2-1627 - most specifically in subsection (B):

B. The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of subsection D of § 18.2-268.3.

So, the CWA has power over all charges starting at class 3 misdemeanors (maximum punishment $500). The AG has four basic functions it can do (1) assist the CWA without the CWA's permission [lynching crimes], (2) assist the CWA with permission [ID theft, street gang activity in prison, & cigarette sales laws], (3) prosecute with the CWA's permission, and (4) prosecute without the CWA's permission [see prior post for 3 & 4]. It's this last power which is interesting. There does not appear to be a primary prosecutor in those cases which the AG can pursue without a CWA's approval. Thus, there appears to be concurrent jurisdiction which would mean a race to conviction (assuming the CWA and AG are at odds) with the first to convict having the primacy of place because of double jeopardy protections in both the Virginia and US constitutions.

However, I think that the concurrent jurisdiction problem is solved by who controls the grand jury. While a grand jury is regularly impaneled by the local judge, only the CWA, after receiving information from law enforcement "may in such case issue or cause to be issued a summons for any witnesses he may deem material to give evidence before the court or grand jury." Va Code 19.2-201. As well, the only legal agency which can request a special grand jury is the CWA, Va Code 19.2-206, and the only legal agency granted authority to assist the special grand jury is the CWA. Va Code 19.2- 210. Finally, while the AG must approve applications for multi-jurisdictional grand juries, Va Code 19.2-215.2, two or more CWA's must apply for a multi-jurisdictional grand jury to the Virginia Supreme Court. Va Code 19.2-215.3. In order to participate in the multi-jurisdictional grand jury (and subsequent prosecutions) the AG must be invited in by the applying CWA's. Va Code 19.2-215.10. Since "no person shall be put upon trial for any felony, unless an indictment or presentment shall have first been found or made by a grand jury in a court of competent jurisdiction or unless such person, by writing signed by such person before the court having jurisdiction to try such felony or before the judge of such court shall have waived such indictment or presentment" the grand jury is a choke point which the Attorney General cannot get past without a defendant agreeing to waive it.  Va Code 19.2-217. 

So, the answer is, because of the AG's lack of access to the grand jury, the CWA has primacy in almost all prosecutions. The only time an AG could prosecute something without the CWA approving at some point would be (1) if the AG had the power to prosecute without the CWA's approval, and (2) the AG and the defendant agreed to go forward on an information rather than the defendant standing on his statutory right to a finding by a grand jury. That seems an unlikely scenario, but it is legally possible.

Ambush in Bartlette: Chapter 37

"Ladies and Gentlemen," Gil stood facing the twelve jurors, "the prosecutor has just spent over an hour telling you why he wants you to agree to kill Jeff Sanger. He wants you to vote to kill that man,” Gil pointed at his client, “who was not present during the shooting, for the death of a person he could not possibly have known was there. Even if you accept everything the prosecutor tells you as true, the only deaths Jeff could be responsible for were those of the rapists and the deputies. You’ve already told the prosecutor that you don’t agree with him on those charges.”

“Even if you accept everything the prosecutor tells you as true, neither the attorney nor the priest were people Jeff wanted dead, meant to kill, or even knew would be in that alley. The government tells you that two other people made the decision made the choice to start shooting even though there were people in the alley who were not supposed to be there.”

“Even if you accept everything the prosecution tells you is true, the two men who actually killed everyone could have left. The government’s evidence told you that on a previous occasion, when another person was with Robert Ross, they walked away from an attempt to kill him. Therefore, even were you to believe every bit of evidence which the prosecutor has told you, you know that it was the choice of the two men who actually killed Father Pahl and Keith Tolliver to do so - not the choice of Jeff Sanger.”

“No knowledge of their presence. No intent to kill them. No participation in the shooting. No part of the decision to shoot. You may agree with the prosecutor that Jeff is responsible for these deaths. However, allowing the government to kill him for choices he did not make - choices he could not make - is far beyond holding someone responsible. It moves into the realm of vengeance. It is in the realm of ten drops of their blood for every single drop of ours.”

“Vengeance is God’s role. Justice is what we seek in this venue. In that spirit, we ask that you return a just sentence. A sentence which reflects the facts which the government has shown, not the vengeance the prosecutor is trying to force upon us all.”

-----------

“That man,” Brad pointed at Jeff Sanger, “Arranged for the murder of everyone in that alley. Not only did he set it up, he did it in the most in-your-face way that he could. He had his men ambush them in the alley between the courthouse and the Sheriff’s Department. He had them do it in broad daylight when it would be almost unimaginable that no one else would be in the line of fire. People walked down that alley to the parking lot. People walked on the sidewalk on the other side of the alley. People went into that alley to smoke because it wasn’t allowed in the courthouse or sheriff’s office. He knew an innocent person would probably be in that alley. And he sent his assassins anyway.”

“Why? Because he wanted Bo Ross killed. He wanted Bo out of the way because Bo is honest and competent. He wanted Bo out of the way because Bo was going to be the next sheriff. Jeff Sanger wanted to be the next sheriff and he wanted to protect his criminal activities. He was willing to kill anyone in that alley to get Bo.”

“We all know who died in that alley. On any other day it might have been a clerk from the court taking a smoke break or a 9-1-1 operator walking back to her car or someone passing by the front of the alley on his way to the Food Time on his way to buy groceries. But this time the innocent people in that alley were a lawyer and a man of God.”

“Father Theodore “Ted” Pahl was standing in that alley wearing a black shirt with a white collar tab. There was no way they didn’t realize he was a priest - a man who dedicated his life to God. And yet, they were so dedicated to Sanger - and scared of him - that they opened fire and tried to kill everyone in the alley. They even went so far as to blow up the big propane tank that was in the alley to make sure everyone got killed.”

“Jeff Sanger sent his men to kill everyone they found and they killed a bunch of people - two of whom were entirely innocent: Keith Tolliver and Father Pahl. You don't get to kill everyone who was there and then claim that you shouldn't get the appropriate punishment because you didn't know the exact person who would be there."

“There’s an old legal parable which is repeated a lot because it’s true. In it a man kills his parents. After he is found guilty of killing them his attorney argues that the man should get a lenient sentence because he’s an orphan. Every attorney in the world has heard that story a hundred times, because it shows something we all know to be true. A defendant, through his attorney, will argue anything to avoid the punishment he should get. In this case the argument is ‘I planned to kill a bunch of people in an alleyway, but I shouldn’t be held responsible for killing some good people who were there because I didn’t exactly know which good people might be there.’”

“Well, there were good people there. A gentleman who dedicated his life to the law and his family. A priest who dedicated his life to God and his church. He deserves the maximum punishment you can give him for each murder.”

“Punish him for what he did. Give him the maximum because we cannot do anything more. Life in prison is a pale substitute for the life he has taken from Keith Tolliver, but that is all I can ask you to do to try and balance those particular scales. Holding him responsible for killing a priest, a man of God, a man who did no wrong and spent his life trying to save others and serve others requires a heavier weight to balance the scales. We should never ask for the death penalty lightly, but sometimes even it is not enough to balance the scales. We cannot bring the good of a godly man back all we can do is ask you to hold the man who killed him responsible. The scales will never be brought back to actual balance, but we mortal souls can only do so much. And we ask you do what you can to bring the scales as close to balance as we can. Give him the death penalty he has earned for himself."

Bills Of Particulars In Virginia Criminal Law

A Bill of Particulars are a form of discovery in which a party seeks answers to particular questions. As I understand it, they are a widely used discovery tool in civil practice. However, for those of us who practice criminal law (at least in Virginia) it is a sort of extraordinary discovery tool available only in specific circumstances.

The primary statute which addresses bills of particulars in Virginia is Va. Code § 19.2-230:

A court of record may direct the filing of a bill of particulars at any time before trial. A motion for a bill of particulars shall be made before a plea is entered and at least seven days before the day fixed for trial and the bill of particulars shall be filed within such time as is fixed by the court.

Of course, that doesn't really tell us anything outside of the scheduling of such a motion. T actually find the parameters within which bill can be filed we have to look (1) to case law, and (2) cases involving certain constitutional issues under Va Code § 19.2-266.2.

(1) CASE LAW

The appellate courts in Virginia have not viewed bills of this types favorably and the general rule is that they are only available if the defendant cannot determine what he is charged with under the indictment.

The purpose of a bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried. He is entitled to no more. However, when the statutory language does not in itself fully and clearly set forth all material elements of the offense, a trial court may direct the filing of a bill of particulars. The decisive consideration in each case is whether the matter claimed to be left out of the indictment has resulted in depriving an accused of a substantial right and subjects him to the danger of being tried upon a charge for which he has not been indicted.  Sims v. Commonwealth, 28 Va.App. 611 (1998).

The purpose of a bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried. He is entitled to no more.  Swisher v. Commonwealth, 256 Va. 471 (1998).

Practically, this lays out two circumstances in which a bill of particulars is allowed. (a) First, an indictment could reference a statute which references a common law crime (a regular occurrence in Virginia). (b) Second, the indictment could reference a statute which contains more than one offense.

(a) Referencing Common Law

Reason Needed:  The first situation is commonplace in Virginian law. For instance, there is no statutory definition of larceny. Therefore, an indictment for grand larceny is charged under Va. Code § 18.2-95:

Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.

There are some elements above which added to the common law elements of larceny make the theft a grand larceny (felony), but nothing actually defines larceny. Therefore, if (1) you can stand in front of a judge with a straight face and say that you need a bill of particulars because you don't know what elements the prosecutor plans to prove in order to establish larceny, and (2) the judge believes you, then (3) you should get a bill of particulars. More realistically, this should probably apply to more obscure common law being indicted under a statute. An example of this might be if the prosecution indicted misprision of a felony under the misdemeanor catch-all statute Va Code
§ 18.2-12 (any misdemeanor without a set punishment is a lass one misdemeanor). A typical defense attorney would probably not know the elements of that offense and therefore a bill of particulars would make sense. 

What Should Be Allowed:  Under this allowance of a bill, a defense attorney should only be entitled to a list of elements which the prosecutor plans to prove in order to prove the offense. There would not be a need for any factual/evidentiary disclosure to tell the defendant the elements of the offense he is accused under.

(b) More Than One Offense Under the Statute

 Reason Needed:  Again, this is a common occurrence under Virginia's statutes (I imagine this happens everywhere and particularly in the federal system where a "short" statute only fills two pages and has 14 sections). Take the above grand larceny statute for example. A person can be convicted of a felony if $5+ is taken from a person, $200+ is stolen generally, or a firearm is taken. Suppose a defendant is charged generally with "grand larceny as per the elements of ancient common law and the requirements of Va Code § 18.2-95." The defense could move the court for a bill of particulars to determine which of the three elements the felony statute the prosecution is going to rely upon and he should be entitled to the bill.

What Should Be Allowed:  In this case, a bill of particulars would more accurately be called a "bill of winnowing." The prosecutor should be required to choose which element she intends to go forward under. Again, there would be no need to have any factual/evidentiary disclosures in order to tell the defendant exactly what he is being charged with.

 

(2)  CONSTITUTIONAL ISSUES

In general, Va Code § 19.2-266.2 is a statute stating that requires written defense motions to be filed 7 days before trial and be argued at least three days before trial. Under subsection A it lays out those areas to which this applies:  (i) suppression of evidence on Fourth, Fifth or Sixth Amendments grounds, (ii) dismissal for violation of speedy trial, (iii) dismissal for double jeopardy, or (iv) dismissal because the statute is unconstitutional.  Then, in subsection C. it throws in bills of particulars:

To assist the defense in filing such motions or objections in a timely manner, the circuit court shall, upon motion of the defendant, direct the Commonwealth to file a bill of particulars pursuant to § 19.2-230. The circuit court shall fix the time within which such bill of particulars is to be filed. Upon further motion of the defendant, the circuit court may, upon a showing of good cause, direct the Commonwealth to supplement its bill of particulars. The attorney for the Commonwealth shall certify that the matters stated in the bill of particulars are true and accurate to the best of his knowledge and belief.

Possible Interpretations: There are two ways to interpret that statute. (i) The one which prosecutors would favor is that this section is merely directing trial courts to do what is normally done under § 19.2-230 which might be required to determine whether double jeopardy applies or whether the charge falls under the part of a statute which might be unconstitutional.  (ii) The one which defense attorneys would favor is a mandated requirement of disclosure pertaining to evidentiary matters which might pertain to the gathering of evidence that might violate the 4th, 5th, or 6th Amendment.  Surprisingly, there seems to be little precedential case law on this; the sole mention seems to be in a throw away footnote in Sims v. Commonwealth, 28 Va.App. 611 (1998)(footnote 3):

Appellant contends that Code sec. 19.2-266.2 required the court to order a bill of particulars. However, that statute operates only where the defendant seeks (1) suppression of evidence as violative of search and seizure or self-incrimination protections or (2) dismissal of an indictment "on the ground that a statute upon which it was based is unconstitutional." Appellant has not alleged any grounds to bring this statute into play. His constitutional claims relate only to the non-specificity of the indictment and do not reach the constitutionality of the underlying statutes he was charged with violating.

 While this is clearly dicta, it is the only direction given us and it limits the requirements of this statute to only three occasions: search/seizure issues, self-incrimination issues, and unconstitutionality of a statute. That doesn't make a whole lot of sense, and a trial court interpreting this statute after Sims recognized this and stretched the interpretation to apply to everything listed in § 19.2-266.2.  See Commonwealth v. Kuhne, 80 Va.Cir. 299 (2010). Technically, the trial judge was wrong when he broadened beyond the scope allowed by the Court of Appeals (never mind that the trial judge's interpretation makes more sense).

What Should Be Allowed: Under the dicta of Sims, the bill of particulars would be limited to evidentiary issues that pertain to search and seizure or self incrimination protections. As applied to a statute it would just require laying out the elements as per a normal § 19.2-230 bill of particulars (recall, § 19.2-266.2 does not apply to "unconstitutional as applied" arguments which therefore can and would be raised at trial after the evidence has been presented). However, keep in mind that there is no strong precedent anywhere for this and either of my two offered interpretations above could prevail in the end as well as the one offered by the Circuit Court judge.

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Calling a Juror Back to Testify About the Verdict

Can you call jurors back to testify about the way a decision was made or about how they didn't really agree, but they acquiesced because of pressure from other jurors?

No (at least not in Virginia), unless the juror is going to testify about an influence from outside the evidence provided in court.

Research that I did on this point a couple weeks back:
 

A. Lord Mansfield's Rule (Common Law Rule): 

 No inquiry allowed as to jury deliberations.

Vaise -v- Delaval, 1 T.R. 11, 99 Eng. Rep. 944 (K.B. 1785):  The court refused to receive affidavits from two jurors indicating that they had decided on their verdict by tossing a coin to resolve the issue. The court cannot receive an affidavit from a juror as to the nature of the juror’s deliberations.

B. Previous Common Law Rule (no longer in effect since 1785):

Allowed as to (1) misbehavior or (2) partiality.

 Norman v. Benmont Willes, 484, 125 Eng. Rep. 1281 (C.P 1744):  “In cases of this sort where the objection could not appear of record, we always admitted of affidavits-as in respect to a misbehavior of any of the jury, or any declaration made by any of them, either before or after the verdict to show that a jury man was partial."

B. Virginia Rule:

Steptoe v. Flood's Adm'r, 72 Va. 323 (1879):  It is certainly a general rule that affidavits of jurors to impeach their verdict should be rejected, first, because they would tend to defeat their own solemn acts under oath; second, because their admission would open a door to tamper with jurymen after they have given their verdict; and third, because they would be the means, in the hands of a dissatisfied juror, to destroy a verdict at any time after he had assented to it. 

Clark v. Commonwealth, 135 Va. 490 (1923):  [I]f each juror gave his assent to this verdict, the accused had no right to inquire how or why he arrived at it. The deliberations of the jury and the motives which actuate them in arriving at a verdict are secret and usually even jurors themselves will not be allowed to impeach their verdict by testimony as to secret motives which controlled them, or misunderstanding instructions of the court, the effects of the evidence, the measure of their verdict and the like.

Federal Deposit Ins. Corp. v. Mapp's Ex'r, 184 Va. 970 (1946):  The testimony of jurors concerning their deliberations and proceedings is not admissible. It is not competent for a juror to testify what did or did not influence him.

Fuller v. Commonwealth, 190 Va. 19 (1949):  [A]fter the discharge of the jury a juror will not be heard to impeach the verdict to which he has agreed by saying that he misunderstood the instructions of the court.

Mir Aimal Kasi v. Commonwealth, 256 Va. 407 (1998):  Virginia has been more careful than most states to protect the inviolability and secrecy of jury deliberations, adhering to the general rule that the testimony of jurors should not be received to impeach their verdict, especially on the ground of their own misconduct. Generally, we have limited findings of prejudicial juror misconduct to activities of jurors that occur outside the jury room.

C. Exceptions to Virginia Rule

(1) Externally Acquired Evidence:

Evans-Smith v. Commonwealth, 5 Va. App. 188 (1987)(Juror consulted an almanac): Generally, the testimony of jurors ought not to be received to impeach their verdict, especially on the ground of their own misconduct. . . . An exception to the general rule limiting post-verdict examination of jurors is recognized when it appears that matters not in evidence may have come to the attention of one or more jurors so as to violate the defendant's constitutional right to be confronted with the witnesses against him.

See also: Harris v. Commonwealth, 13 Va. App. 47 (1991)(Juror, a prison guard, “testified” to fellow jurors about the effects of parole on a sentence from a position of knowledge and authority)

(2) Discussing the Case With a Non-Juror

Caterpillar Tractor Co. v. Hulvey, 233 Va. 77 (1987):  Generally, we have limited findings of prejudicial juror misconduct to activities of jurors that occur outside the jury room. For example, the rule has been applied to expressions of opinion made by a juror to third persons during trial proceedings. In most cases, misconduct outside the jury room has prejudicially affected the jury's deliberation of the case by injecting facts connected with the case which had not been admitted in evidence. For example, the rule has been applied to an improper jury view and to unauthorized private conversations between jurors and third persons. 

See also:  Jenkins v. Commonwealth, 244 Va. 445 (1992)(adopting same rule in criminal cases)

When Can the Attorney General Prosecute?

Prosecutor:  "No, Mrs. Smith, we will not be prosecuting your dead uncle because he promised he would leave you the house in his will and he didn't."

Mrs. Smith:  "But you could prosecute Bobby-Jean. She's the one who's got his estate."

Prosecutor:  "She didn't do any crime. You need to talk to a private attorney about this."

Mrs. Smith:  "I ain't got the money to do that. You better prosecute or I'll go over your head to the Attorney General!"

I would wager that every person who works in a Virginia Commonwealth Attorneys office has heard this threat at least five or six times. The thing is, the Attorney General mainly handles appeals. He has very limited prosecutorial abilities in a circuit court. I don't answer to him; I answer to that guy at the other end of the hall from my office. And the reason I'm dealing with Mrs. Smith is that the guy at the end of the hall grew up around here and knows she's coocoo for coco puffs. He's talked to her 26 times already about this and is hoping that my reasoning might break through the maginot line of Mrs. Smith's mind where his has not.

Anyway, the one good thing the conversation has done is to spark my interest in what exactly the Attorney General's criminal prosecution jurisdiction is. So, I sat down and tried to figure it out. There's always the possibility that I missed some section hidden in the UCC somewhere, but I think this covers the vast majority of prosecutorial powers which can be exercised by the Attorney General.

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Boundaries of the Attorney General's Prosecutorial Powers in Circuit Court Criminal Trials (mainly found in Virginia Code section 2.2-511):

1) Apparently none if asked by the Governor to handle a particular case.

2) Without a request from the governor and without permission of the local prosecutor:

(a) Violations of the Alcoholic Beverage Control Act (§ 4.1-100 et seq.),
(b) Violation of laws relating to elections and the electoral process as provided in § 24.2-104,
(c) Violation of laws relating to motor vehicles and their operation,
(d) The handling of funds by a state bureau, institution, commission or department,
(e) The theft of state property,
(f) Violation of the criminal laws involving child pornography and sexually explicit visual material involving children,
(g) Unauthorized practice of law,
(h) Violations of § 3.2-4212 [cigarette taxing provisions] or 58.1-1008.2 [false report by tobacco company].
(i) Per 18.2-43, assist in all endeavors and prosecutions against those participating in a lynching.
(j) Per 18.2-498.5, violations of the Virginia Governmental Frauds Act.
(k) Per 19.2-9, may appear with the Commonwealth Attorney when a criminal case is removed to federal court.

3) With the permission of the local prosecutor:

(a) Violations of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.),
(b) Violations of the Air Pollution Control Law (§ 10.1-1300 et seq.),
(c) Violations of the Virginia Waste Management Act (§ 10.1-1400 et seq.),
(d) Violations of the State Water Control Law (§ 62.1-44.2 et seq.),
(e) Violations of Chapters 2 [Principals and Accessories] (§ 18.2-18 et seq.), 3 [Incohoate Offenses] (§ 18.2-22 et seq.), and 10 [Crimes Against the Administration of Justice, i.e. Obstruction] (§ 18.2-434 et seq.) of Title 18.2, if such crimes relate to violations of law listed in (b), (c), and (d) supra,
(f) Criminal violations by Medicaid providers or their employees in the course of doing business, or violations of Chapter 13 [Racketeering] (§ 18.2-512 et seq.) of Title 18.2, in which cases the Attorney General may leave the prosecution to the local attorney for the Commonwealth, or he may institute proceedings by information, presentment or indictment, as appropriate, and conduct the same,
(g) Violations of Article 9 [Money Laundering] (§ 18.2-246.1 et seq.) of Chapter 6 of Title 18.2,
(h) Assisting in the prosecution of violations of §§ 18.2-186.3 [Identity Theft] and 18.2-186.4, [Publishing Another's Information to Harass],
(i) Assisting in the prosecution of violations of § 18.2-46.2 [Criminal Street Gang Participation], 18.2-46.3 [Criminal Street Gang Recruitment], or 18.2-46.5 [Committing Terrorist Act] when such violations are committed on the grounds of a state correctional facility, and
(j) Assisting in the prosecution of violations of Article 10 [Cigarette Sales Laws] (§ 18.2-246.6 et seq.) of Chapter 6 of Title 18.2.

4) Multi-jurisdictional Grand Jury – Per 19.2-215.10, if requested by applicants or special counsel, may participate as special counsel to the grand jury and in any prosecution arising from the grand jury.

5) I would posit that if the Attorney General wanted to donate the time of an attorney in a case wherein there is no statutory authorization then the assistant attorney general can work as a private prosecutor. I have no statutory or case law to support this, but there is a solid argument in favor of this position. Article V section 15 of the Virginia Constitution creates the Attorney General and states "He shall perform such duties . . . as may be prescribed by law."  It does not state that he shall perform his duties as prescribed by statute or by the General Assembly; it says "law." Virginia recognizes common law and the common law has long allowed private prosecutors with the acquiescence of the local government prosecutor.  It would just have to be done according to the rules for private prosecutors.

Private Prosecutors

 Rules for a private prosecutor as laid out in Riner v. Commonwealth, 268 Va. 296 (2004):
 
1. He may not initiate a prosecution.
2. He may not appear before the grand jury.
3. He may appear only by leave of the trial court.
4. He may participate only with the express consent of the public prosecutor.
5. He may make a closing jury argument only in the court's discretion.
6. He may take no part in a decision to engage in plea bargaining.
7. He may take no part in deciding the terms of a plea bargain.
8. He may not make the decision to accept a plea of guilty to a lesser crime.
9. He may not make the decision to enter a nolle prosequi.
10. Automatic disqualification: A private prosecutor who has a civil interest in the case so infects the prosecution with the possibility that private vengeance has been substituted for impartial application of the criminal law, that prejudice to the defendant need not be shown. Allowing that private prosecutor violates the defendant's due process rights under Article I, §11 of the Constitution of Virginia.
11. Work Allowed to Do: (a) There is no arbitrary limitation as to the proportion of work which may be done by a private prosecutor.  (b) Limiting private prosecutors to innocuous witnesses and evidentiary matters would effectively abrogate the common-law principle that still permits their appointment.
12. ULTIMATE RULE: The public prosecutor must remain in continuous control of the case.

Moments in the Life: Another Worthless, Fat F~ck with Glasses

I'm standing in the doorway to a room next to the hallway leading to general district court. I've been talking to Officer Smith about a case that is set for a preliminary hearing that morning, but he got a phone call about another case so I'm killing time looking at something on my phone.

Suddenly, I hear someone loudly proclaim in the hallway, "Look, it's another worthless, fat f~ck wearing glasses." Seeing as that comes disturbingly close to describing me, I turn to see who the proclaimer is and I see one twenty-something male and his woman walking past another twenty-something male who is standing next to the wall. The one standing next to the wall has glasses and is rotund. Proclaimer was obviously provoking Stander as the hall is tight and they both had to be within slugging distance when he spoke. Nevertheless, Stander just stays where he is and Proclaimer walks on until he is around a nearby corner.

I look over at Stander, who is still in the same spot looking as innocent as he can pretend to be. Then Proclaimer comes back around the corner at twice the speed he left, heading straight for Stander. Instinctively, I step into the middle of the hall facing Proclaimer so that he cannot get past me.  Proclaimer pulls up about ten feet short and looks confused. He doesn't know what to do. He wants to go back and get in Stander's face (at the very least), but there's this attorney standing in his way.

About the time Proclaimer gets confused, my brain kicks in and the first thing that goes through it is "What the BLEEP am I doing? If that kid decides he wants to go through me it's going to be painful." So, acting while Proclaimer is still confused, I call out loudly "Officer Smith, could you please come out into the hall?"

Officer Smith puts his phone away and comes out of the room. He sizes up the situation in about a half second and points to Proclaimer. "Leave now! Go where you are supposed to be."

Proclaimer: "He started it. He . . ."

Officer Smith: "Don't care. Move on."

Proclaimer: "But, it's not me . . ."

Officer Smith: "Move on or you will get charged with disturbing the peace."

At that point Proclaimer gives us all an angry look mixed with disdain mixed with the look of someone put upon and oppressed. Then he turns and walks away with his girlfriend.

About fifteen minutes later I had to go into another room where people wait to be arraigned to interview a witness who was waiting there. Officer Smith is with me. Proclaimer, waiting for his arraignment, is sitting there with his girlfriend. As we all leave, he starts back up with the officer.

"He started all of that. It wasn't me."

Officer: "Don't care. No fighting in the courthouse. Don't start up again."

Then Proclaimer turns to me. "You're over him. He needs to be nicer. You need to make him be nicer to people."

Yeah, cuz I'mgoing to yell at a twenty year veteran who stopped you from starting a fight in the hallway. Of course, saying that out loud will do nothing but feed the fire and I just keep walking moving toward the next problem (there's always a next problem).

Proof that All My Testosterone has Died

I'm walking through the narrow hallway outside the general district courtroom (misdemeanor court) and the entire way is lined with defendants standing there chatting with each other while they wait for their shoplifting and trespass cases.

Cute girl with impossibly long blonde and pink ponytail (thick as my arm and ending somewhere around her knees) looks up at me:

"You look mean. Are you mean?"

I just keep walking. "That's the job."

The whole hallway burst out in laughter and the girl looked at me confused.

Look, Miss, I know you were expecting me to say something like "Not for someone as young and precious as you, darling", and I realize as a male I am obligated to have my brain turn to mush when a pretty woman talks to me. When I was younger you probably could have wrapped me around your little finger. However, there comes a point in most guys' lives when the testosterone level drops to the point that his brain can continue to function if a hot woman flirts with him. I think I hit that point somewhere in my low to mid thirties. Prior to that point women could (and every so often did) get me to do all sorts of stupid things for them. So, I guess you either have to build a time machine and go back a few years or you're gonna have to take your shot with the younger prosecutor down the hall.

Can a Jury Trial Be Held on Election Day?

As long as I've been practicing law every courthouse I've been to has declined to schedule jury trials on election days. When I was a brand new attorney a judge explained it to me by saying "You cannot summons jurors on election day and therefore you cannot have a jury trial." I never bothered to check the law on this. Every judge I had appeared in front of refused to schedule juries on election days and it just became one of those things everybody knew could not be done.

Today I was scheduling a jury trial and the judge set it to start on election day. I told the judge that was election day so we couldn't start the trial that day. His reply? "What is your statutory support for that?" I stood there flat footed and said something brilliant like "Umm, every court I've ever been in has told me that." The judge then went ahead and scheduled the jury trial for election day. It really doesn't make a difference to me when the jury starts, but the legal question bugged me. So, I spent more time than I should have researching.

I couldn't find anything in Virginia's statutes or case law which stated a jury trial could not be held on election day. However, I did find this:

Title 8.01: Civil Remedies and Procedure

§ 8.01-327.2. Who are privileged from arrest under civil process.

[T]he following persons shall not be arrested, apprehended, or detained under any civil process during the times respectively herein set forth, but shall not otherwise be privileged from service of civil process by this section:
. . .
7. Voters going to, attending at, or returning from an election. Such privilege shall only be on the days of such attendance.

For those of you who don't know how things work in Virginia, much of Title 8.01 is used as a default for trial procedure unless an issue is specifically dealt with in the criminal procedure sections. Even beyond that, a summons for jury duty is hardly a criminal summons (which would require one to come to court to answer an accusation of criminal activity).

So, as best I can tell, there is no requirement that juries not be held on election day. Notwithstanding that, if a juror decides to leave to go vote at any time during the trial judge cannot require that person to stay. So, if jeopardy has attached and Mr. Juror decides he is going to go vote at his precinct on the other side of the county Mr. Juror can leave. It could happen while the prosecutor is in the middle of his opening statement or the defense attorney is in the middle of a crucial cross examination or the judge is in the middle of reading jury instructions.

Is this likely to happen? No. In fact, it is downright ridiculous scenario. Nevertheless, it is the law and it shows an intention by the General Assembly to favor elections over courthouse proceedings. Still, if the General Assembly really wants to absolutely stop jury trials on election days it needs to be much less obscure than this.

Wait, No, That's Wrong-Right (4th Amendment by the Uninitiated)

Every time I watch something like this I find myself saying "No that's not right"; "Wait that's not how that works"; or "That's right as far as it goes, but . . . "

Overheard in Court

I walk in to listen to part of a civil jury trial going on in Circuit Court. Apparently, the judge had on the previous day indicated that he was disposed toward striking the evidence in the plaintiff's case as legally insufficient to present to the jury (I believe other States would do this via directed verdict). However, the judge gave the parties the night to research and come in to argue. As I watched the plaintiff's attorney, who clearly had already been going for a while, cited case after case after case and explained why each case required the judge to allow the jury to decide the case based upon the evidence which had already been presented.

At one point, prior to moving on to the next case in his stack, the plaintiff's attorney looks up at the judge:

"Judge, not to be too cheeky or anything, but whenever I reach the point that you decide the law requires you not to strike the case please interrupt me and we can move forward with the case."

The judge just smiles back at him: "Naw, that's okay counsel. You put a lot of work into preparing all this for today and I'd hate to stop you when you are only an inch into that stack of cases."

The Vacation: Day Eight

This day was a couple hours of driving followed by attendance at the West Michigan Whitecaps game. They were hosting the Bowling Green (Ky) Hot Rods and it was a pretty good game with the Whitecaps getting two runs in the third and doing the same in the fourth. Then they held off the Hot Rods who scored individual runs in different innings, including the ninth.

The park was full and the crowd was into it, but somewhere around the 3rd or 4th inning something started bugging me and after looking around a bit I figured it out. Almost nobody in the stadium was wearing Whitecaps stuff. I noticed at the souvenir store that there was more stuff from the Major League affiliate than I usually see - a lot more. The Whitecaps are the the single A affiliate of the Detroit Tigers and there were a lot of people wearing Detroit hats/jerseys/t-shirts. However, not even all the ushers were wearing Whitecaps stuff. There were at least two ushers walking around completely decked out in Tigers stuff. I think this is a reflection of two things. First, Detroit is the mothership, has an extremely loyal fan base, and is just down the road a couple hours. However, if that were enough then nobody at Dayton would be wearing Dragons stuff (instead wearing Reds stuff), but the stands there were filled with people in Dragons gear. I think the second factor was the most important: the Whitecaps logo sucks. It's a wave withe eyes crashing over a baseball. It's not the worst logo I've seen, but it's in the bottom ten percent. In comparison, the "D" that Detroit uses as well as the tiger are classics. The test of this theory will come tonight when I'm at the Toledo Mudhens game (Tigers' AAA affiliate) with their well established logo.

When the game ended and we were all walking out the gates they were handing out loaves of bread. Let me rephrase that . . . They were aggressively handing out loaves of bread. Kids were running everybody down and basically throwing bread at them. I barely had time to realize what was going on before a girl ran up and shoved a loaf at my chest so I had to grab it. It wasn't like I was trying to avoid the kid. It was kind of providential; I'd just used up the last of the bread in my cooler (but still have P&J and lunch meat). However, whether I wanted it or not that girl was going to make sure I took my loaf of bread.

Next up: The Toledo Mudhens on Saturday and the Columbus Clippers on Sunday. However, I doubt y'all will get updates from me because the Mudhens are playing a double header against the Bats tonight and the Clippers game is at 1 p.m. on Sunday. Then comes the 5 hour drive home. Not going to be much time for anything other than sleeping or driving for the next couple days.