Looking over Virginia Prosecutors Hiring : Better Get in Shape

 I was looking at CLE's and the next button over was available positions, so I meandered over to have a look. Lots of offices are hiring and it looks like several must have had some sort of mass exodus. 

Of note:

1.  Several are still starting their sales pitch at the very beginning by telling the potential applicant that they can fire him/her anytime they want to (because that always indicates a healthy office atmosphere).

2.  At least one (Halifax) is offering a signing bonus (gotta admit that would have been pretty sweet when I moved from Midlothian to Wise 17 years ago).

3. I saw job titles I'd never seen at a Commonwealth Attorney's office before: Deputy Chief of Staff (Prince William), Senior Assistant Commonwealth’s Attorney (Henrico : this title is used elsewhere, but here it is apparently higher than Attorney III, but not chief deputy), and Conviction Review Unit Attorney (Arlington County / City of Falls Church : interesting but comes with a one year employment limit).

4.  And finally, if you're going to work as a prosecutor in Carroll County you'd better be prepared for daily calisthenics and have a cdl:

Physical Requirements
This work requires the frequent exertion of up to 25 pounds of force and occasional exertion of up to 50 pounds of force; work frequently standing, walking, sitting, speaking or hearing and using hands to finger, handle or feel and occasionally requires reaching with hands and arms and repetitive motions; work has standard vision requirements; vocal communication is required for expressing or exchanging ideas by means of the spoken word; hearing is required to perceive information at normal spoken word levels; work requires preparing and analyzing written or computer data, operating motor vehicles or equipment and observing general surroundings and activities; work has no exposure to environmental conditions; work is generally in a moderately noisy location (e.g. business office, light traffic).

Punting: Artis v. Commonwealth

I am breaking down last month's cases from the Courts Appellate Virginian and I trip over Artis v. Commonwealth, JAN23, VaApp no. 1407-21-1.  There are two issues in the case. The first is about abatement and Judge Dominique A. Callins handles that one with a well reasoned and if anything too thorough explanation. Then she dealt with a second issue which boiled down to "if proof of a prior conviction makes a crime aggravated (carrying a greater punishment), does the proof have to be proven in front of the jury or can it simply be introduced to the judge at sentencing?"

In the fact pattern, Judge Callins states:

At sentencing before the trial judge, the Commonwealth introduced for the first time, without objection, evidence showing that Artis had a prior conviction[]. Over objection from defense counsel, the trial judge imposed an enhanced sentence.

Okay, if you practice criminal law in Virginia you know how such a prior conviction is proven at trial. The prosecution introduces a certified copy of the conviction. This proves the conviction. A prior conviction can also come to light as part of a pre-sentence report, although that would not have occurred in this case.

The appellant claimed that the introduction of the prior conviction had to be done during the trial on guilt or innocence. Judge Callins disagrees, stating that constitutional precedent does not require that. In a lengthy footnote (no. 3: worth the read), the Judge explains that this is a General Assembly decision (I agree) and stops just short of stating openly that they ought to get off their bums and make the decision.

Then Judge Callins punts. She talks about a case precedent requiring proof, pointing out the case doesn't say when (this is when she elucidates with footnote 3). Instead of deciding the question before her, the Judge states "it is clear that the predicate conviction upon which the trial court sought to impose the enhanced punishment was neither alleged nor proven."

The "alleged" language seems to be desultory as it wasn't a topic addressed. The not proven really has no basis in the decision either, because "evidence showing that Artis had a prior conviction" doesn't tell us what the evidence was at all. After reading this opinion, I have no idea what the Court held to be insufficient evidence. I realize this case deals with a statute now eliminated by the General Assembly, but proving a prior conviction is something done in any number of charges. It's important to know what is not sufficient to carry the day in the Court of Appeals.

Overall, I must say this is the first time I've found a case really interesting from one of the new wave of judges. The legal reasoning was solid and well supported. The factual reasoning may have been as well; I just can't tell from the facts as they are laid out in the opinion. I think it may be worthwhile to keep an eye out for Judge Callins' opinions.¹

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¹  If for no other reason than because she uses "proven" rather than the despised and ugly "proved." Heck, if she is so righteous with God that she also uses the Oxford comma I'm probably going to start pushing for her to go to the Supreme Court.

"Lustful Disposition" : Allowing Unadjudicated Acts in Child Sexual Abuse Cases

A lecturer at the CLE I'm currently attending asked whether Virginia has the "lustful disposition" evidence rule allowing unadjudicated sexual acts to be introduced against a defendant charged with a child sex abuse case. Nobody in the room knew the answer so I thought I'd check.

Yes. Virginia has this rule.

The federal government and many States adopted a specific rule of evidence setting out this rule [Rule 414] starting in 1994. However, at that time Virginia did not have codified rules of evidence and it did not adopt them until 01 June 2012. When it did so it did not adopt the federal rules, but codified much of the common law rules of evidence in a manner similar to the federal rules in Part Two of the Virginia Supreme Court Rules. However, those parts of common law rules of evidence not in the new rules of evidence did not go away:

[The Rules] are adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules. . . . As to matters not covered by these Rules, the existing law remains in effect. Where no rule is set out on a particular topic, adoption of the Rules has no effect on current law or practice on that topic. Rule 2:102

I point this out because when Virginia adopted its rules it did not create a Rule 414. This failure to say yea or nay requires us to go old school and look to Virginia's case law to see where things stand.

The lustful disposition rule has been well established in Virginia since at least 1923:

The authorities are in conflict upon the general question as to whether, in a prosecution for statutory rape, evidence may be admitted of intercourse between the accused and the prosecutrix subsequent to the act upon which the prosecution is based. The better doctrine, as we think, is that where, as here, the consent of the prosecutrix is immaterial, such evidence is admissible as tending to show the disposition of the defendant with respect to the particular act charged.  Stump v. Commonwealth, 137 Va. 804 (1923).

While Stump is largely used in Virginia case law for the proposition that rape can be thru force or constructive force, its precedent as to unadjudicated sexual acts with minors has remained in place:

The court specifically instructed the jury that this evidence [unadjucated sexual activity] was not to be considered for any purpose other than as it might tend to show the disposition of the defendant with respect to the particular act charged. Defendant has nothing to complain about on this point.  Waitt v. Commonwealth, 207 Va. 230 (1966).

Even later, Stump was relied upon in Marshall v. Commonwealth, 5 Va.App. 248 (1987) as supporting precedent for the introduction of an existing rape conviction for an act within the same time period of the current indictment for rape of the minor.¹

In 2008, the Virginia Supreme Court again laid out this rule without specifically citing Stump:

It is well settled that in a prosecution for incest, evidence of acts of incestuous intercourse between the parties other than those charged in the indictment or information, whether prior or subsequent thereto, is, if not too remote in point of time, admissible for the purpose of throwing light upon the relations of the parties and the incestuous disposition of the defendant toward the other party, and to corroborate the proof of the act relied upon for conviction.  Ortiz v. Commonwealth, 276 Va. 705 (2008)(grandfather having sex with granddaughter under 13 yoa).

For those of you who can't wrap your head around having a rule of evidence without a number attached, you could find your safe harbor under Rule 2:404(b):

[E]vidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith. However, if the legitimate probative value of such proof outweighs its incidental prejudice, such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan.

Admittedly, I've not met many judges who favor letting anything thru under this portion of the rule. In fact, I had one tell me that the only thing he'd ever let in under this would be modus operandi proof. It is, after all, one of the biggest catch-all exceptions in the rules. However, if your judge is young enough that she can't see beyond the numbers² this is probably the best place to hang your hat as you recite the precedent to support the common law rule. 

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¹  A case rendered redundant by the passage of § 18.2-67.7:1 and adoption of Rule 2:413 in accordance with the law [both in 2014].

²  We old farts all learned the rules of evidence under the common law. Thus, we neither know all the numbers nor particularly care about them.