My Brethren and Sistren in the Commonwealth's Attorneys offices of Virginia are meeting this week to become educated as to how to improve themselves in the profession. I'll add my two cents worth by supplying this motion which I created when the General Assembly unconstitutionally denied the Commonwealth and the trial judge their right to a complete jury. I haven't had the opportunity to use it yet. I gift it to all of you. Remember, the Virginia Constitution applies to the defense just as much as it does to us.
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VIRGINIA:
IN THE CIRCUIT COURT OF PITCAIRN COUNTY
COMMONWEALTH
v.
JOHN SMITH
Case No: CR00-0000
Commonwealth’s Notice
Not Concurring in Defendant’s Waiver of Jury
In the matter of Commonwealth v. John Smith, pursuant to Virginia Constitution Article I section 8, the Commonwealth does not concur in the accused’s partial waiver of a jury.
In support of this the Commonwealth states as follows:
Virginia’s Constitution in Art. I sec. 8 states “If the accused plead not guilty, he may, with his consent and the concurrence of the Commonwealth's Attorney and of the court entered of record . . . waive a jury. In case of such waiver or plea of guilty, the court shall try the case.”
(1) Pursuant to the final sentence, a judge cannot try a person unless he has waived a jury or pled guilty.
(2) Pursuant to the first sentence quoted above, the accused cannot waive a jury without the concurrence of the Commonwealth’s Attorney and Trail Judge.
(3) Nothing in the Virginia Constitution allows for a partial waiver of a jury and juries have been sentencing bodies for the entirety of their existence in Virginia. Nancy J. King, The Origins of Felony Jury Sentencing in the United States, 78 Chi.-Kent L. Rev. 937 (2003) (Jury sentencing replaced automatic death penalties for felonies in 1796).
(4) As a statutory matter, the General Assembly has recognized that sentencing by jury remains part of Virginia law, § 19.2-295.1 (Sentencing proceeding by the jury after conviction), although a statute purports to default the accused to the status of having waived the sentencing portion of trial:
§ 19.2-295 (B) When the accused is tried by a jury, deliberations of the jury shall be confined to a determination of the guilt or innocence of the accused, except that when the ascertainment of punishment by the jury has been requested by the accused, a proceeding in accordance with § 19.2-295.1 shall apply.
Inasmuch as § 19.2-295 (B) purports to waive an existing part of a jury for the accused without the concurrence of both the Commonwealth's Attorney and the trial court, this statute directly conflicts with Article I section 8.
(5) In the case at bar, the accused has not given notice under § 19.2-295 (B). This means that the accused is waiving the sentencing portion of the jury. Neither the Commonwealth nor the trial court have concurred in this waiver. Without these necessary concurrences creating a valid waiver, the trial court cannot try this case.
Wherefore, the Commonwealth does not waive a jury in this case and prays the court to impanel a constitutionally valid jury to determine both guilt and the appropriate sentence.
____________________________ ____________________
Ken Lammers Jr. Date
Deputy Commonwealth's Attorney
Pitcairn County
CERTIFICATION
I certify that a copy of this Notice was delivered to Mary Sue, Attorney for the defendant on the date below by email and fax.
____________________________ ____________________
Ken Lammers Jr. Date
Deputy Commonwealth's Attorney
Pitcairn County
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