02 May 2005

A Jury Trial in Virginia

Client charged as felon in possession of a firearm. Actually, he is supposed to have been adjudicated a juvenile delinquent for an action which would have been a felony if he had been convicted as an adult and been in possession of a firearm before his 29th birthday. Here's the statute.

The judge has one 30+ minute recess before trial so that the prosecutor can get a nonsubpoenaed witness for an in limine hearing.

The judge rules that I cannot assert an affirmative defense that a government agent or body has told my client that he can possess a firearm after the state trooper in charge of the records testifies that when my client filled out the form to buy a firearm and the store clerk checked with the state police "there was something wrong with the program" so that it stated he was eligible to possess a firearm.

The judge allows the prosecutor to ask a question about religious belief in voir dire.

After opening arguments the prosecutor calls one witness then seeks, and gets, another recess. The judge grants this one as well and the prosecutor - now advised of my entire defense strategy (that the paperwork shows my client was not convicted) - goes and gets 4 more unsubpoenaed witnesses. This recess lasts much longer than the other recess but I'll conservatively say 30+ minutes.

The first unsubpoenaed witness (the excuse for the recess) testifies in the case at chief and provides absolutely no non-redundant evidence.

Prosecution enters the record of the "conviction." The papers have a petition which alleges assault and battery of a police officer (bumping him with his chest), the petition notes a guilty plea and a finding of guilt. SIX MONTHS LATER, the Disposition Order states that Client's charge was disposed of as an A&B; nothing in it indicates the charges was disposed of as a felony. Judges clearly have the power to reduce felonies.

I call my client as a witness. When I ask him if he was convicted the prosecutor objects, judge sustains. I ask my client if he thought he was convicted. Prosecutor objects, judge sustains. We go up and talk at the bench and the prosecutor tells the judge if my client testifies one of his unsubpoenaed probation officer witnesses will be called in rebuttal. Judge says he will allow on that basis but I don't have a clue what that unsubpoenaed probation officer is going to say so I pull my client off the stand.

I introduce to final dispositions sent to the jail about my client's sentence from the juvenile court. The first has two misdemeanors and a felony. The second, sent two days later with "AMENDED" written on the side, shows the first two misdemeanors again but the felony is not shown. Judge won't allow me to introduce the statutes which show that the jail must take a DNA sample (and thus must be notified if the court finds someone guilty of a felony).

After lunch we come back and the prosecutor goes to call his 3 other non-subpoenaed witnesses "in rebuttal." I object and ask what it's in rebuttal to. At first the reason offered by the prosecutor and adopted by the judge is that the rebuttal is to counter my opening argument. After I point out that that's not introduced evidence and should be countered in closing argument the reasoning for allowing the rebuttal morphed into countering the two pieces of paper I entered into evidence.

The 3 witnesses then come to the stand and don't testify to anything involving the two sheets of paper. The first unsubpoenaed witness testifies that he was the prosecutor on the first date in the juvenile court. The second unsubpoenaed witness testifies that she was the probation officer on the first date in juvenile court. Neither can testify to anything that happened on the disposition date. The third unsubpoenaed witness is a probation supervisor who never saw the inside of the courtroom; over objection he is allowed to testify that he saw paperwork which did not indicate a change. On cross I show him the actual disposition order and ask him what A&B means; he dodges and then says he hadn't seen the actual order.

The jury leaves and we argue over instructions. The judge refuses to instruct the jury as to the requirement that jails take a DNA sample of someone because "no testimony has been offered as to the taking or not of DNA samples." I point out that this is not the purpose of the instruction - the purpose is that the jail must take the sample and therefore must be notified and the AMENDED notification does not have the felony on it. Over ruled.

Jury comes back, we make arguments, jury goes out, and jury comes back. Conviction.

While jury was out we argued over sentencing instructions. Prosecutor offered the basic "He is convicted; You MUST give him 5 years" instruction. I countered with an instruction based upon the plain reading of the statute. At the top the statute states that the statute applies to those (1) convicted and those (2) adjudicated who are in possession of a firearm. In the punishment section it states that this is a class 6 felony (0-5 years) and there are mandatory punishments for those convicted. My client was not convicted - he was adjudicated. I offer an instruction for a punishment from 0-5 years. Prosecutor points to a case which says that judge must give the 5 year mandatory instruction. Judge goes, looks up case, and brings it back. Our court of appeals ignored the plain language of the statute, the canons of statutory construction, and legislated into existence the same punishment for adjudications as there is for convictions. I almost threw the opinion on the ground after I read the pertinent portion.

Jury goes back in for sentencing. Jury refuses the mandatory sentence of 5 years. Judge calls jurors out and reads them the riot act. Jury goes back and comes out with the 5 year sentence.

I go through the motions and finally leave the courthouse in disgust.


Anonymous said...

I'm working on a rather high-profile case up here in the frozen tundra that hung the first time. I am taking it for the re-trial. The record is clear that the judge bent over backwards to try to get a conviction to pacify the locals in order to succeed in his upcoming retention election. This is th etype of stuff that really gets my dander up as an attorney.

Alaska (posting anonymously because my blawg is done through typepad, not blogger)

Adelaide Gamer said...

We'd call that a Kangaroo Court if the judge was in uniform (and it sounds like he might as well have been).

Anonymous said...

Saw where your Judge allowed questions as to religious beliefs.

How detailed were you all allowed to get into on that? Over here, the Judge asks if anyone has a religious belief that prohibits him/her from passing judgement on someone. It's not uncommon to have a couple of people answer in the affirmative to that.

Anonymous said...

Kenny--did I miss something, or was your predicate felony actually and assault and battery conviction? I just don't see how you lost that one.

123txpublicdefender123 said...

And I thought some of our judge's were too pro-state. Sounds like you and your client got shafted. At least it sounds like you have a pure, legal issue for appeal. Either the previous charge is a felony conviction under the law or it's not. I don't even see why that is a jury question.

Anonymous said...

Dumb law student question:

What are the odds you could get the conviction reversed because of those rulings? And are you going to try?

Mister DA said...

What the hell? Was your judge the former elected PA? Or did your defendant previously date his daughter? Or maybe his wife? For that matter, how does something like that get authorized? I suppose, though, even on the rule of don't authorize the warrant unless you think you can prove it beyond a reasonable doubt you'd get a LOT of cases like this if that's how your judges tend to act.

Final question - how did they catch him? Up here, this is almost always an add on charge. The defendant is arrested for some mis-deed or other and is found to have a firearm in his trunk, or some family member rats him out when the arrest warrant is executed. I don't recall any cases where felon in possessin was the sole charge.

Anonymous said...

Wow. I wish I could be on a jury someday. A couple times I've gotten the letter, been all excited, but it hasn't happened. Someday I'd like to be on a jury and see what it's like.

I wonder where they found 12 people, all of whom agreed that this ambiguity in the record did not form a "reasonable doubt". All 12 thought it was okay? And then they have the nerve to act shocked when ordered to send the man to the Gulag - what did they expect? That this whole fancy trial was for the purposes of getting him the "help" he needed, like D.A.R.E always says? What a bunch of naive polyannas.

Are these typical jurors?

And this whole game of not letting the jurors hear all the facts - and threatening them until they impose the specified sentence - that's just icky. This whole thing makes me think of the Apology of Socrates, where he describes how the ruling junta of Athens had made out 2 lists - one list was of prominent, solid citizens, the other list was of people the junta wanted dead. People would randomly be selected from the first list to accompany a group of police officers to the house of a person from the second list, and recite the formalities of arrest so that this person could be taken away and executed - those who refused the chore were moved from the first list to the second list themselves.

Is the right to jury just a way of spreading the blame for unjust punishments, so that the government is not some tyrannical villain, because obviously ordinary people support them - just as in Socrates' story?

Anonymous said...

WOW! that's depressing. It makes me really glad I live here in WEST (By GAWD!) Virginia instead of old-time Virginia.

I've been on local rural county juries repeatedly over the past 20 years, and never have I seen anything like what you describe. In my county the judge is a funny and caring guy who really tries to make the trial a fair and balanced event.

In both of the murder trials I was in the jury, they lasted about 2 weeks. We acquited both times - I halfway expected to be kicked out of the pool for the second trial, but no. The other jurors wanted me to be foreman for the second trial, since I was for the first one, and I said, "No, I've done my time, pick someone else!"

They did, he was an ordinary guy and did an OK job.

Man, the state of justice in VA must be really something. This was a railroad, from your article.

Keep up the good work, tho, and when you can't take it any longer, come to WV where trials are a fair and square deal.

JR in WV

Tom McKenna said...

OK... the REST of the story, as Paul Harvey says...
FIRST--The juvenile conviction order recited a PLEA of guilty and a FINDING of guilt and no evidence showed that the judge ever modified that finding. The defense argument was that because in the final adjudication order the clerk's hand written description of the offense was "A&B" and not "felony A&B" that somehow the JUDGE must have reduced the charge. By the way, "A&B" could equally mean "felony A&B" or "misdemeanor A&B"-- in the absolute void of any evidence such as an order, that the charge was reduced, the more reasonable conclusion is that the "A&B" referred to felony A&B, which was the charge the def. plead to and was found guilty of. The prosecutor, the probation officer and her supervisor all testified they did not in their files note a reduction of that felony, even though they DID note changes to the related misdemeanors accompanying the felony. So, the evidence was pretty clear (certainly to the jury) that in fact, this WAS what it purported to be, a felony conviction.

SECOND, asking about whether a juror has a religious belief which would preclude being able to convict someone proven guilty beyond a reasonable doubt is clearly proper, since a positive response would render the juror unable to try the case fairly to the Commonwealth, which, by the way, is also entitled to a fair trial.

THIRD, the judge's rulings on the legal issues (i.e., whether the defendant can assert a defense of reliance on official assurances, whether he can testify to his subjective understanding of his felony status, and what the correct statutory sentence is), were all issues correctly decided according to relevant, binding precedent. I'm sure the defense would like the judge to ignore the law, but he must obey his oath, just as the jurors had to obey their oaths in imposing the sentence mandated by the legislature.

Ken's other gripes center around my ability to get "unsubpoenaed" witnesses into court to rebut his defense. But if these witnesses helped the jury decide whether the defense was valid, why would anyone object? Surely not because they might expose the defense as wishful thinking on the defendant's part? (By the way, why didn't his lawyer on the A&B clear this all up by coming in and testifying that the judge reduced the charge?)

BOTTOM LINE: the whole defense was predicated on assuming the judge reduced a felony even though the same jude had entered a finding of guilt and no evidence (besides the clerk's handwritten description of the charge) supported the view that the judge had reduced the charge. Ken a great guy, a great lawyer, and put up a hell of a fight for his guy, but he should feel lucky it took the jury a whole hour to figure it all out.

Windypundit said...

Wow. Cool. How interesting to hear both sides this way! You guys should do this more often!

Alright, maybe not.

Some questions from a non-lawyer:

I'm curious, why doesn't "reliance on official assurances" work? Can a cop just say "Yeah, go ahead...gotcha!"? What's the theory? Is it very specific to this situation, or are cops generally unreliable for this kind of information?

Anonymous said...

Hi Tom,

I guess I'd like to comment again, now that all the attorneys are present. I'd like to say that, as a citizen, I feel that all these games that lawyers play involving just what the jury is allowed to hear are complete crap. If the jurors are kept deliberately in the dark about the sentence and get upset when they find out that they have no choice, then maybe it shouldn't have been kept from them? And as a citizen who might someday serve on a jury, I would not want to convict ANYBODY of a crime for doing something that the relevant government official had assured him was not illegal. So it's just wrong not to tell the jury.

The law is an ass here. There is no excuse. You guys are presenting a fake case to the jury. The jury sits and decides some phony case that's just been cooked up as a subset of the real one, and then are forced to apply this decision TO the real one.

I also think that a prosecutor like you should try to keep a higher standard of justice in mind than a defender like Ken. Ken has no duty other than to further the interests of his client. But as a prosecutor you're supposed to represent society! Locking up a man who in good faith thought that he had legally purchased a handgun, for 5 years - that is MONSTROUS! Ken has the duty to get an axemurderer off if he can. But you aren't just supposed to rack up man-years of prison and probation time, are you, is that really your job?

Because I think this sort of crap is killing the country. Just my liberal ideas here, don't take it personally.

I guess I'll go back to lurking again, like I've been for months, I just had to have my say here. Unless, of course, you'd like to explain things to me, in which case I'd be delighted to hear what you have to say.

OH boy, I wish I could be on a jury someday. I wish so much.

Ken Lammers said...


Nobody whom we know or work with handed a paper that says A&B on it is going to think "felony." We both know that. There's always a notation to the felony section of the statute and/or a descriptive annotation. There wasn't either. If the court's order was in error there was that 21 day window of retained jurisdiction to fix it.

A jury is not obligated to render a sentence if they cannot come to an agreement. That's why sec. 19.2-295.1 has an offered solution "[i]f the jury cannot agree on a punishment." Not that that jury was really trying to take a stand. We both saw that jury light come back on without them doing one second of deliberation when they were sent back. They just wanted to make a statement to soothe their consciences.

Why didn't we get the former defense attorney? Because somebody else bears the burden of proving the case (hmmm . . . wonder who that might be?). My client had no such burden. I notice the prosecutor who was in the disposition hearing wasn't brought to court and she's right over there in the Juvenile Court Building (that whole 2 minute walk away).

The evidence it was disposed of as "A&B" was an Order signed by the judge.
Why wouldn't I want a prosecutor and 2 probation officers who weren't in court for the disposition hearing called? Perhaps they might be the slightest bit biased?

Geez, I feel like I'm redoing closing argument. I put more in a new entry I posted before I saw your comment.


Ken Lammers said...

Mister DA,

Firearm charges are the big dog here (perhaps soon to be overtaken by gangs). The feds moved in and basically took over serious prosecution in Richmond several years back and their big stick was Exile (felon w/firearm = 5 years). The Virginia General Assembly saw this, thought it was good and made it a State law as well with a couple changes. Federal funding proceded to flow into counties which concentrated on firearm offenses.

As to how they caught him: The police suspect my client and his brother are parked casing a place. The problem is that they drive away (and the officer swore to me they couldn't see him watching them). They do a pretext stop and find the shotgun on the floorboard in front of the back seat. The case was shaky and my client's defense (which I cannot disclose here for fear of prying eyes- Hi Tom!) would have been pretty doggone strong. All the charges against brother were dropped and all charges except possessing a firearm were dropped against Client.

Ken Lammers said...


I can't believe I'm going to say these things but here goes . . .

First, I think Tom might disagree with my belief that my client didn't know he was a felon. He might characterize it as my client taking a chance to see if he could buy a firearm. I think that's a stretch but he might disagree with me.

Second, Tom had made an offer of 2 years so he was not an absolute maniac setting out to get the 5 years no matter what. I've never had the impression that Tom was one of those guys who wanted to compete to see if he could get the most conviction time in his office. And Tom and I have gone at each other more than a couple times.

Third, while Tom made a motion to keep me from asking jurors about the mandatory sentence, I'm forbidden to ask that anyway. If I start to do something that obviously out of bounds the judge should stop me himself. The fault for this dishonesty in the jury system doe not lie at Tom's feet. He didn't write the statutes or cases which established that law.

Ken Lammers said...

law student,

Yes, this is going to get appealed. There are at least 3 major legal issues.

However, all non-capital appeals in Virginia are at the discretion of the appellate courts. They will choose whether or not they will hear the case.

PD Dude said...

Great post Ken. I posted about it on my blog at http://publicdefenderdude.blogspot.com/2005/05/from-crim-law-blog-injustice-in.html

I have to say, despite reading the prosecution's side of this, I think that this was truly a misguided prosecution. Is there so much doubt that the prosecutor calls a probation officer from a decade earlier (as if they'd remember), tries to divine whether there was an actual conviction, and says that "the most reasonable charge" he was convicted of was a felony!? That's a bunch of crap - if there is another reasonable and compelling explanation pointing to the defendant's innocence, that should be enough to preclude a filing.

Mr. prosecutor, if there was such a question that you had to clear things up with such spurious witnesses and suppress so much defense evidence (such as evidence that the defendant asked permission first!!!), then you may have too many moral and ethical shortcomings that should prevent you from having the community's trust to hold a position such as you hold.

Tom McKenna said...

PD Dude:

The defendant did not "ask permission" first; he illegally obtained a shotgun despite his felony statuts because of a computer error in the State Police database. The trial judge correctly ruled based on appellate court precedent that this error did not properly constitute an affirmative defense.

Yes, I called the PO, not from a decade ago, but the POs who dealt with this defendant's case. They are charged by the court with maintaining accurate records of the court's actions, and said there was no notation of a change in the charge in their file, even though they did see notes about changes to the ancillary charges, ergo, my point that there was no change was well-taken. The actual PO at the final dispo. hearing was retired and unavailable.

YET AGAIN, this defense boiled down to the claim that the clerk hand writing "A&B" instead of "A&B on a police officer" rendered the charge a misdemeanor despite all the prior findings in the case. Pretty weak stuff to hang your hat on. Certainly not "reasonable and compelling" either to the judge (who might know a thing or two about court orders) or to the jury.

Ken Lammers said...

Hmmm . . . Didn't mean to leave anyone with the impression that there was a ten year gap. I think my explanation of the statute must have been confusing. It was actually a year or so (don't have the file in front of me right now) after the juvenile disposition. The firearm was probably actually bought only a few months after the final hearing in the juvenile court.

The defense boiled down to an order signed by the judge. Whether or not it was written by the clerk has just as much relevance as whether the orders signed by Circuit Court judges are typed by the clerks.

Wow, we keep this up much longer and I won't even have to write a petition for the appeal. I'll just have to cut and paste from here.

Anonymous said...

I'd like to hear both lawyers opinion on informing the Jury of Jury Nullification.