Friday, November 27, 2015

Virginia Supreme Court Justices Reject an 11 Month Study to Reform Virginia’s Rules of Discover with Recommendations that Could Eliminate “Trial by Ambush” in the Commonwealth......with a 2-Sentence Long Decision


Opinion: Virginia’s Supreme Court brushes off recommendations for reforms, December 15, 2015

Original Post:

Readers may remember an Action Item posted back on May 27, 2015 and that Goal #24 of my Legislative Goals is to eliminate “Trial by Ambush” by honoring a defenses motion for discovery. 

Well after an 11-month study by a 29-member group, Virginia’s Justices rejected any reform to our system with a 2-sentence order.  

See today’s article below. It sounds as though the VSP and our Commonwealth’s Attorneys opposition to changing our current system were taken with the most weight in this decision instead of justice being served. 

An “open file” policy should not be on a county-by-county or a city-by-city basis, every court in Virginia should allow the same opportunities to their defendants.

I can say with 100% certainty, Hanover County VA does NOT have an “open file” policy and that allows them to stack-charges and then offer a plea deal with a 5-minute timeframe to take-it or leave-it and if it's no jail-time most folks who don't have thousands of dollars at their disposal to pay for a competent defense team, will take it even when you have no idea what the evidence against them is. Prosecutor -1 , Defendant (and justice being served) -0.

Thank you to all my readers who took the time to send in comments to the VA Supreme Court as directed in the May 27th Action Item. 

Mary Devoy 


Justices reject recommendations on pretrial discovery in criminal cases, November 27, 2015
By Frank Green

Earlier this month, without comment or explanation, the Virginia Supreme Court declined to adopt changes recommended by a committee of judges, prosecutors, defense lawyers and others after an 11-month study of pretrial disclosure rules in criminal cases. 

The proposals by the Special Committee on Criminal Discovery Rules were aimed at improving pretrial discovery to help make sure pleas are knowingly entered, that trial preparation is not a matter of guesswork and to prevent “trial by ambush” while protecting the privacy and safety of victims and witnesses. 

The two-sentence order from the justices left committee members contacted last week surprised and puzzled. Some were relieved and some, principally defense lawyers, were upset over the outcome and the lack of information about the court’s concerns.

In a statement in response to questions from the Richmond Times-Dispatch, Chief Justice Donald W. Lemons said he did not presume to speak for the other justices, but he felt that a more incremental approach would be more palatable to the court and that the committee might want to reconvene to consider if more efforts should be undertaken. 

“The Court engaged in thorough consideration and in depth discussion concerning the proposed changes,” he wrote.  

Lemons added that there was much to be commended in the report. However, he said, “such fundamental and sweeping changes in the system, especially in light of the strong public comments opposing them, seem unwise at this time.” 

Lemons said, “It is apparent that the proposals are the result of ‘trade-offs’ in the negotiations between interest groups. It would be difficult for the court to accept some of the proposals and not all of them as a package because the court cannot be certain about the interdependent nature of these compromises.” 

The Virginia Supreme Court appointed the 29-member committee nearly two years ago. This year, the justices solicited four months of written comments from the public on its 60-page report submitted last December and then spent another four months considering the proposed changes and comments. 

On Nov. 13, the court issued a two-sentence order that concluded: “Having considered the Committee’s report and the public comments submitted in response thereto, the Court declines to adopt the Committee’s recommendations.” 

Prosecutors on the committee were as puzzled by the brief order as other members. 

“I was surprised that all of the recommendations were rejected. I thought the committee generated a substantive and balanced report,” said Richmond Commonwealth’s Attorney Michael N. Herring. 

Lynchburg Commonwealth’s Attorney Michael Doucette said he learned of the decision only when he was contacted by a media outlet. 

“All I can say is that it was both succinct and sphinx-like at the same time,” Doucette said of the order. 

Bill Farrar, director of public policy and communications for the ACLU of Virginia, complained that “to just ignore it with zero explanation really doesn’t make any sense.” He said, “Clearly, this is something we had very high hopes for and we’re very disappointed and confused as to how we came to this place. We’d like answers.” 

He said criminal defense lawyers are upset over the “terse” rejection of the recommendation. 

“These changes ... would have dramatically improved Virginia’s criminal justice system. Under the current rules, prosecutors can continue to withhold basic information from the defense, such as police reports and witness statements. The current system encourages trial by ambush,” he said. 

Among the committee’s recommendations was that police reports and witness statements be subject to discovery by the defense with a broad provision for withholding, redacting or restricting police reports for good cause. 

Prosecutors have a key role in the justice system — deciding whether to charge someone, whether to offer plea deals and even whether a death sentence will be sought in a capital murder case. 

They need not show defendants reports, statements and other evidence before trial — unless it is favorable to the defense. Virginia, like most states, leaves it up to prosecutors to decide what evidence to share. Some prosecutors have “open file” policies, while others keep as much information as possible close to the vest. 

If a prosecutor errs, an innocent person might be wrongfully charged or convicted; or a guilty person could be freed on appeal after an otherwise correct and hard-won conviction. At least two Virginia capital murder convictions have been overturned in federal court in recent years for prosecutors improperly withholding important information favorable to the defendants. 

Expanded, or even so-called “open-file discovery,” is already informally practiced by some Virginia prosecutors as well as in some other states such as North Carolina, where it was adopted in the wake of the Duke lacrosse scandal in which three members of the school’s lacrosse team were falsely accused of rape. 

Doucette said his office has had “open-file” discovery for years. “The provisions dealing with the disclosure of all police reports did not cause me great concern,” he said. 

“However, there was a great deal of concern on the part of many other prosecutors and law enforcement officials as to how to safeguard the personal information of victims and witnesses that is contained within those reports,” Doucette said. 

A minority report from a committee member with the Virginia Department of State Police says the government’s first duty is to protect the public, and the proposal to open investigative files would require prosecutors and judges to gamble with witness safety “by attempting to predict the unpredictable.” 

Although proponents of open files argue that safeguards were built into the proposed changes to protect victims and witnesses, Doucette said he is wrestling with how to address safety concerns in a digital age when defense lawyers can photograph sensitive information in his paper files with a smartphone. 

The committee report strongly favored a transition to electronic document management in all of the jurisdictions in the state. 

According to Doucette, the committee report stated: “It is emphasized that use of electronic document management is a key to avoiding unnecessary costs, burdens and delays, as well as to avoid misuse or abuse resulting from providing the accused or the public inadvertent access to sensitive material.” 

But that, he said, “would have added significant time and financial burdens to all prosecutors’ offices. It would be one thing if each prosecutor in the Commonwealth carried only one felony prosecution at a time; it is a totally different prospect when you consider the reality is that most prosecutors carry caseloads of 100 to 200 felonies at a time.” 

“Perhaps the court realized that we do not have, at this time, the financial resources throughout the Commonwealth to install statewide digital case management systems with electronic discovery,” Doucette said of the Supreme Court’s decision. 

On the other hand, he said, “there were some provisions dealing with the reciprocal discovery of experts and their opinions that I did think was especially beneficial.” Current rules encourage experts not to reduce their opinions to writing so they can be seen ahead of trial, he said. 

Committee member Douglas Ramseur, with the Virginia Association of Criminal Defense Lawyers, said, “I was proud of the work we did, and I was surprised that they would just dismiss it out of hand the way they did.” 

“I haven’t given up on this,” Ramseur said. “This is a change that just needs to happen. It’s coming; it’s just a question of how long do we have to wait before we get some fairness here.” 

Ramseur said the committee involved players from all sides of the system. 

“We worked very hard to strike a balance between more disclosure for people charged with crimes, (with the) protection of personal information and victims’ rights,” Ramseur said. There were recommendations that could have been cut without upsetting that balance, he argued. 

There was only one minority report, he noted. “Otherwise, this was a committee that was completely in favor of what we did and so (the order) was disappointing to see after all that work and all that time. 

“I hope that what it means is the court wasn’t ready to enact the proposal at this time. Frankly, this movement is not over. The country is moving to it.” 

The committee chairman, retired Judge Thomas Horne, did not respond to a request for comment. 

However, Lemons, the chief justice, said the high court was grateful to the committee and Horne. 

“It is apparent that much time and effort went into their work product. I have been in contact with Judge Horne and have shared my views with him,” Lemons said. “Perhaps the committee will want to reconvene in the future to consider whether additional efforts should be undertaken.”