The Court of Appeals of Virginia issued a blistering reversal today in Denzel Lane v. Commonwealth, delivering one of the most scathing opinions you’ll ever read. At a probation violation hearing, the trial court openly admitted that it lacked statutory authority to impose an active jail sentence for a first technical violation. Undeterred by such trivialities as the law, the judge brazenly disregarded the statute, imposed a 60 day active sentence, and delivered a sanctimonious lecture chastising the legislature for daring to seek to limit his authority. The Court of Appeals, tasked with reviewing this would be judicial dictator, wasted no time delivering a smackdown. W&K has obtained the full trial transcripts for your enjoyment and education: 

Judge Plowman: This is the matter of Commonwealth v. Denzel Lane, a most repugnant probationer who has offended the moral sensibilities of this community. Commonwealth, explain his nefarious deeds. 

Prosecutor: Your Honor, Mr. Lane has defiled our fair lands with the devil’s weed: he smoked marijuana while on probation. Repeatedly. The scofflaw is unrepentant and mocks us by saying he did it with the intent to, quote, “feel chill.”

Judge Plowman: [Shaking his head gravely.] Outrageous! This vile degenerate has besmirched the morals of our community. And what punishment do the wise and noble legislators prescribe for this depravity?

Defense Counsel: Your Honor, this is a first technical violation under Code § 19.2-306.1, which, as enacted by the General Assembly, prohibits the imposition of an active jail sentence.

Judge Plowman: [Face contorting into an expression of deep disgust] Do you presume to educate ME? This law you cite vexes me greatly. I find it... stanky! Quite stanky indeed. A rank affront to my authority. I shall disregard it.

Defense Counsel: But, Your Honor, the legislature and the separation of powers...

Judge Plowman: [Leaning forward, eyes blazing with fury.] SILENCE! Stop squawkin before I separate your limbs from your torso! I hereby sentence this irredeemable marijuana puffer to 60 days behind bars. Take him away! 

On July 1, 2021, Virginia decided to let its hair down and get freaky, scrapping mandatory jury sentencing. The move was hailed as groundbreaking. Joe Morrissey, the law’s chief patron, proclaimed it “the most significant piece of criminal justice legislation in the last decade.” The Westendorf & Khalaf blog was on board, dubbing it “a true game changer for those of us in the trenches of criminal courts.” Progressive legislators like Don Scott popped the corks on Dom P, claiming, “It will level the playing field for defendants against the overpowering power of the state.”

Meanwhile, some groups of prosecutors and Republican legislators sounded the alarm. The Virginia Association of Commonwealth’s Attorneys predicted a courtroom apocalypse, warning that jury trials would multiply like Gremlins doing cannonballs into a swimming pool.

Three years later, it seems the revolution has been postponed. The frequency of jury trials has barely budged. No courtroom fireworks, no jury trial armageddon, just a faint uptick.

The Numbers

Let’s look at the scoreboard, comparing jury trial data from the last two years under the old regime (2018–2019) to the first two full years under the new system (2022–2023):

• 2018–2019: 557 felony sentencings following jury trials (1.3% of felony cases in circuit court).

• 2022–2023: 676 felony sentencings following jury trials (2.1% of felony cases in circuit court).

  
  

That’s about a 20% increase in jury trials statewide. Not exactly the eightfold explosion the doomsday prophets at the Virginia Association of Commonwealth’s Attorneys warned about.

Why Aren’t Defense Attorneys Taking Advantage?

The only modest uptick in jury trials has sparked plenty of theories. But here are some factors that, in my view, aren’t moving the needle much:

1. Sentencing Data Doesn’t Tell the Whole Story

Some mention that the numbers only count jury trials ending in felony convictions, ignoring acquittals. True enough, but this has always been the case. And there’s no evidence of a stealthy surge in not guilty verdicts since the rule change. (For what it’s worth, our firm has had eight jury trials with zero felony convictions since jury sentencing went away. When the lawyers are sweet, the juries must yeet the acqueet. Just saying.)

2. Adjustments to Sentencing Guidelines

On the same day jury sentencing went extinct, sentencing guidelines were tweaked, allowing the low end of the range to drop to zero for defendants who accepted responsibility or provided substantial assistance. This was a solid bone thrown to the defense, but in my experience, it hasn’t moved the needle on plea negotiations. Prosecutors stick to unadjusted guidelines for the most part, and judges' interpretation of “acceptance of responsibility” has been inconsistent. 

3. Reduced Time for Non-Violent Felonies

As of July 2022, inmates convicted of non-violent felonies serve 65% of their sentences instead of 85%. While that’s a sweet perk for inmates, it’s a nuance that is rarely a deciding factor for defendants weighing a jury trial.

4. Better Plea Offers

Some suggest prosecutors are making more reasonable offers to dodge jury trials. Maybe that’s true in some places, but I haven’t seen much evidence of it where I practice.

What’s Really Holding Back Jury Trials

If scrapping jury sentencing was supposed to spark a jury trial renaissance, why aren’t defense attorneys oiling up their legal biceps and flexing for jurors? Here’s what’s weighing them down:

1. Mandatory Minimums Still Loom Large

During the same legislative session that nixed jury sentencing, there was talk of abolishing mandatory minimum sentences. The debate got bogged down with the question of: “Should we get rid of all mandatory minimums or just some?” Sadly, a failure to compromise resulted in the final result being that none went away. And let’s be real, mandatory minimums suck big time. They give prosecutors a powerful tool to scare defendants into plea deals by raising the stakes. For example, if a client is charged with possession with intent to distribute drugs (PWID) and possession of a firearm, the prosecutor can easily amend the charge to PWID with a firearm, triggering a five-year mandatory minimum sentence. Even if the case is shaky, the threat of mandatory minimums makes it tough for a defendant to gamble on a jury trial. This dynamic plays out in countless other cases, especially those involving guns or drugs.

2. Murky Legal Distinctions Give Prosecutors Leverage

Many offenses hinge on distinctions so thin they verge on meaningless, giving prosecutors a lot of leeway to stack charges or raise the stakes if a defendant dares resist a plea deal.

Take the difference between first-degree and second-degree murder. On paper, it seems simple: first-degree murder requires premeditation, while second-degree does not. But when you try to pin down what "premeditation" actually means, you end up in an Abbott and Costello routine:

Abbott: What’s the legal definition of premeditation?

Costello: It’s a specific intent to kill, adopted at some time before the killing.

Abbott: How far ahead does someone need to think about it for it to be premeditated?

Costello: It doesn’t have to exist for any particular length of time. It could be a split second.

Abbott: So premeditation is when you don't premeditate?

Costello: Now you’ve got it!

Abbott: …WTF?

This kind of ambiguity gives prosecutors enormous latitude. And it’s not just murder charges. What separates aggravated malicious wounding from malicious wounding? A significant and permanent physical impairment. What qualifies as a significant physical impairment? According to the Court of Appeals, pretty much anything. Yes, even a scar.

These fuzzy lines allow prosecutors to upcharge cases, pressuring defendants into plea deals. Don’t like the second-degree murder offer? Here’s a first-degree murder indictment instead. It’s a game of raising the stakes, making the risk of going to trial even more daunting for defendants.

3. Defense Bar Playing Catch Up

Between 1995 and 2021, mandatory jury sentencing created a culture of fear around jury trials. Many defense attorneys steered clear of them altogether, and an entire generation of lawyers emerged with little, if any, experience standing in front of a jury. Now, it's understandable that some attorneys are slow to adapt. You can’t flip a switch and expect lawyers who built careers without stepping into the jury arena to suddenly dive in. For them, the idea of embracing jury trials feels about as comfortable as picking up a lightsaber after 30 years of hiding in exile on Dagobah.

Conclusion

The end of mandatory jury sentencing was predicted to shake things up in Virginia’s criminal justice system, but so far it’s been more fizzle than sizzle. We might have underestimated just how deeply entrenched the advantages prosecutors have are. That said, it’s clear that defense attorneys have been slow to realize that they can often be more aggressive than they’ve been previously allowed. You’re no longer leashed animals. Run unbridled, free, like the gorgeous animals you are.

It has been almost 60 years since the U.S. Supreme Court unanimously held in Gideon v. Wainwright that every criminal defendant in a felony trial has the right to a lawyer even if they're too poor to hire one. The right to counsel is so ingrained in today’s society that it’s almost universally accepted as a good thing by people across the political spectrum. Of course, the right to “zealous” advocacy only works if competent attorneys actually step up to the plate to provide it. I’m proud to be one of those people. I’ve represented indigent defendants for 16 years as both a public defender and private attorney, and it has been one of the defining aspects of my professional life. So it’s with a heavy heart that I removed my name from the court appointed list this week. Why do you ask? Because the pay structure is no bueno.

Most people have no clue how attorneys are paid from court appointed work. Here’s my best effort to quickly break it down without making your eyes bleed. In circuit court, attorney fees are capped at $158 per misdemeanor charge (it’s $120 in General District Court). Fees are capped at $445 per felony charge unless the charge carries more than 20 years in prison in which case it’s $1,235 per charge. So for example, if I represent a client on one count of manslaughter, the fee cap is $445. If I represent a client on one count of 1st or 2nd degree murder, the fee cap is $1,235. Court appointed work in the Court of Appeals and Supreme Court pays even less. An attorney usually makes $400 for an appeal in the Court of Appeals (and a whopping bonus $100 to drive out for the oral argument); and then between $400 and $1200 in the Supreme Court depending on the complexity of the issue (I’ve typically been given between $400 and $850 no matter how complex the appeal).

In order to try to pull back the curtain on how this works in real life, I’ll give you the full monty transparency. In 2021, I represented 6 court appointed clients in various stages of appeals in the Court of Appeals and Supreme Court of Virginia. I was paid a total of $2,700 for that work. I represented 6 court appointed clients in misdemeanor cases and made a total of $1,358. I did a little bit better on felony charges where I represented 22 people and made around $21,000. Just for point of reference, “When the Virginia attorney general's office hired outside lawyers a year ago to defend the state's election laws, it paid those lawyers up to $450 an hour, apiece” to the tune of total fees of $523,000. “Meantime, private lawyers doing work for the Virginia Retirement System were paid up to $725 an hour. Outside counsel working on ‘privatization matters’ for the Virginia Department of Transportation were paid up to $690 an hour.” Taxpayers footed at least $784,900 in legal fees to defend former governor Bob McDonnell against public corruption charges. Nobody is asking for court appointed attorneys to get disgusting piles of Scrooge McDuck money like this, but it’d sure be nice to make enough money to afford dinner at Applebee’s once in awhile.

A 2005 report by the American Bar Association found that Virginia’s court appointed fees were among the lowest in the nation. There has been no signficant change since then. The 2021 annual report published by the Virginia Indigent Defense Commission again found that Virginia’s rates remain among the lowest in the nation. While all the court appointed fees are ridiculously low, the court appointed fees in the appellate courts are the biggest kick in the nuts. An appeal to the Court of Appeals can easily constitute a full week’s worth of work if not more. I have to order all the proper transcripts, ensure they’re timely filed, read all the transcripts (sometimes multi-day jury trials), determine all possible appellate issues, go back and highlight the relevant portions in the transcript, research and write what is essentially a legal term paper, go back and provide citations to the transcript, ensure that all filing deadlines are met, write a second response brief to the Commonwealth’s brief in certain circumstances, and drive out to a courthouse in another jurisdiction at some point to wait around for hours before making oral arguments.

The conclusion I’ve reached is that by continuing to be on the court appointed list, I’m part of the problem. By accepting $400 to do 40+ hours worth of complex legal work, I’m sending the message that paying attorneys less than minimum wage is a-okay. I’m here to say that it’s not, it’s not cool at all, bro. I’m a public defender at heart, and very much a businessman second. But I still need to be able to provide for my family, and the simple fact is that I’m losing money by being on the court appointed list. It’s taking money and resources away from all of the things that are necessary to sustain and grow my firm. My goal has never been to build a mega-practice or to be able to drive the fanciest car. I truly don’t give a shit about any of that, but I do care about being treated with a modicum of respect and being able to make a living. There is an expression that “budgets are values.” In this case, the state’s budget for court appointed defense expresses that they value our work at approximately the same level of a turd swirling the bowl.

This has been a large bitch and moan fest, but I’m hoping that if enough court appointed attorneys stand up and say “to hell with this,” it’ll eventually move the needle. I’m encouraged that when Bassel and I left the Public Defender’s Office, and we explained to local politicians that the pay gap between PDs and prosecutors was a major reason why, they actually listened to us. We’re far from the only reason, but we’re part of the reason that the Virginia Beach Public Defender’s Office now receives $500,000 annually in salary supplements. The moral of the story for me was that refusing to go along with a broken system is sometimes necessary in order to change it. So today, I bid adieu to the court appointed life, and I encourage others in a similar boat to follow suit.

Taite

Yesterday, the Daily Press published an excellent article by Peter Dujardin highlighting the drastic salary disparities between prosecutors and public defenders throughout Virginia and Hampton Roads specifically. This is an issue near and dear to my heart because I was a public defender for almost 11 years and left for private practice due largely to the insulting pay gap.

If you’ve been a public defender for long, you’ve been to seminars and conferences and heard the groan-inducing platitudes about the nobility and honor of your work. My reaction to these hollow bromides was always, “Cool story bro, but that doesn’t pay the rent or put food on kids’ plates.” If society truly valued the work of public defenders, we wouldn’t be paying them a fraction of what their adversaries in the courtroom are making.

This is usually where the conversation devolves into an inane and pointless debate about whether prosecutors or public defenders have a more difficult gig. “We have to prosecute all cases!” “We have to do constant jail visits!” “We have more jury trials!” “Your cases are handed to you on a silver platter!” Blah, blah, blah, you’re both pretty girls. Anybody who is intellectually honest working in the trenches of the system knows that good prosecutors and good defense attorneys are both important to achieving the best possible criminal justice product. Both sides know that an having an incompetent or inexperienced counterpart is inefficient, excruciating, and ultimately bad for justice.

I’m proud to be one of the many people who worked together to take significant steps to shrink the pay gap in my hometown of Virginia Beach where the City Council authorized $500,000 in supplemental public defender funding each of the past two years. I can tell you definitively that the effort would not have been successful without the support of Chief Commonwealth’s Attorney Colin Stolle. It provided invaluable credibility to have our city’s elected prosecutor tell the City Council, “It makes our job more difficult when we’re working with inexperienced defense attorneys. There can’t be integrity in a conviction unless there’s a competent defense attorney on the other side. These criminal defendants are your constituents too.” (I’m paraphrasing, but I remember it sounding something like this).

Colin’s position stands in stark contrast to so-called “progressive” Hampton Chief Commonwealth Anton Bell who is quoted in the Pilot article as stating that public defender funding “doesn’t involve me.” Bell proceeded to tell on himself in a Twitter exchange with well known online provocateur and public defender Matt Cramer in which he argued “What the Public Defenders do is not equal to what CA Offices are required by statute to do. We have statutory unfunded mandates that PD offices do not have. Secondly, you or no one else will bully me into co-signing your agenda.” Translation: Gibberish...Bullshit...Prosecutors Are More Important Than Public Defenders.

Along the way to achieving public defender funding in Virginia Beach, we heard similar resistance talking points. I’d like to take a moment to address the two specific arguments against public defender funding raised in the Pilot article.

It’s A State Problem, Not a City Problem: In the article, Hampton City Manager Mary Bunting argued that since Public Defenders are state employees, the state should pick up the tab to achieve pay equity. Hampton Mayor Donnie Tuck mirrored that talking point stating that supplementing public defenders would set a “bad precedent” because funding them is a state responsibility.

Public defender and prosecutor salaries are funded almost identically at the state level.100% of the salary disparity between public defenders and prosecutors is the result of cities funding prosecutors and not public defenders. As the article notes, Hampton provides $2.9 million annually to the prosecutor’s office while giving the public defender’s office nothing. It makes absolutely no sense to demand that the state correct imbalances caused by cities. It would be kind of like me demanding that my wife go on a diet because I’ve been gorging myself on chicken nuggets and steel reserve every night. (Sadly the diet of many public defenders on current salaries).

We Have To Face Off Against “High Paid” Defense Attorneys So We Need More Funding Than PDs: This argument conjures up the image of prosecutors helpless in the face of defendants surrounded by teams of well coiffed Armani suit clad lawyers and mercenary experts. How can the poor prosecutors be expected to compete?

This one is so laughable as to barely deserve a response so I’ll keep it short. Defense attorneys no matter how “high priced” are always severely out-funded and out-resourced by the prosecution. The government has hundreds of police officers, forensic experts, in-house investigators, and administrative staff on hand to help prosecutors put their cases together. A well funded defense might be able to afford to pay one private investigator or expert. Emphasis on might.

Here’s the bottom-line: If you care about justice, you have to care about funding indigent defense. We can’t have an adversarial system with integrity when we only provide resources to one of the adversaries. And you don’t get to go around touting your “progressive” credentials if you’re going to be part of the problem.

But this post isn’t actually about jury sentencing. It’s about a massive change to sentencing guidelines that could have a mitigating effect on defendants now requesting tons of jury trials. Effective July 1, 2021, if a judge determines at sentencing that the defendant provided substantial assistance, accepted responsibility or expressed remorse, the low end of the guidelines recommended range will be adjusted. If the calculated low end of guidelines range is three years or less, the low end of the guidelines range will be reduced to zero. If the calculated low end of the guidelines range is more than three years, the low end of the guidelines range will be reduced by 50%. The midpoint and the high end of the Sentencing Guidelines range will remain unchanged.

I hadn’t even heard of this until a few weeks ago. This is what I looked like when I read about it.

This is a sea change to sentencing guidelines. If judges accept that pleading guilty = accepting responsibility, the low end of the sentencing guidelines in the majority of felony cases is going to be zero. In the remaining more serious cases, the low end gets chopped in half. In the immortal words of Keanu, whoa.

What does this all mean for us schmucks schlepping it in the criminal courts everyday? Plea negotiations are usually based on sentencing guidelines, and a typical plea offer might go something like this:

Prosecutor: The guidelines are 1 year 6 months to 3 years 8 months. I’ll offer the 1 years 6 months if your client pleads guilty.

If the prosecutor has the goods to convict your client, that’s probably not a bad deal. But is it still a good offer when the adjusted low end of the sentencing guidelines will now be zero?

My takeaways are that:

• Prosecutors are still going to use guidelines as the basis for plea offers, but we’re going to see way more plea agreements with caps.

• Judges just got hella more discretion to sentence lightly without catching the wrath of the General Assembly. So who you get as your sentencing judge just got even more important.

• Some judges are going to use this newfound discretion often. Some won't. There is going to be an increase in complaints that similarly situated defendants are getting drastically different results.

P.S. On an unrelated note, W&K wishes a happy 30th birthday to Teenage Mutant Ninja Turtles 2: The Secret Of The Ooze. Our sincerest thanks goes to the creative minds who brought us Vanilla Ice performing as himself in an epic ninja rap gang battle featuring a belching werewolf, breakdance karate, and turtles wailing on keytars. God bless America.

If you watch the video, make sure to turn on closed captioning

If you’re a follower of the W&K blog, then you know that we’ve been pounding the drum for a long time to get rid of jury sentencing. Well, it turns out that we’ve got fans in high places because today the Virginia Senate voted 22-18 to give criminal defendants the right to be sentenced by a judge after jury trials. Now it goes off to the House of Delegates with a very real chance of being the new law of the land in 2021.

In the Virginian-Pilot article, Senator Joe Morrissey, the chief patron of the new law, called it “the most significant piece of criminal justice legislation in the last decade.” Now we all know that politicians are inclined to hyperbole, but I’m here to tell you that in this case, if anything, he’s underselling it. It’s a true game changer for the folks like us who live in the trenches of criminal courts.

So why is jury sentencing such a big deal you ask? We’ve broken it down before in some of our other posts here, here, and here. We've also covered it on our podcast. The simple answer is that jury sentences are way harsher and way more unpredictable than judge sentences. The numbers show that defendants who have a jury trial and lose are about 5 times more likely to be sentenced above state sentencing guidelines recommendations compared to defendants who lose after bench trials. And not only do juries sentence over guidelines, they throw down tomahawk posterizing sentencing dunks. Juries on average went over the sentencing guidelines by well over 4 freaking years.

Another little mentioned swirly turd on top of harsh jury sentences is that prosecutors in Virginia can demand jury trials themselves. And with all the leverage that harsh jury sentencing gives them, prosecutors can shut down most cases in a heartbeat by demanding a jury trial.

Prosecutors can also inexplicably transform crimes that carry no statutory mandatory minimum into mandatory sentence crimes by simply asking for jury trials. For instance, aggravated malicious wounding carries no mandatory minimum sentence. But a prosecutor can demand a jury trial, and voila like magic, the jury must recommend a minimum sentence of 20 years. Same goes for many other non-mandatory minimum crimes like possession with intent to distribute a schedule I or II, malicious wounding, and robbery which magically transform into 5 year mandatory minimum crimes when the prosecution demands a jury trial.

So Virginia’s current jury sentencing system is a shit show wrapped in a clusterfuck with a dash of clown fiesta. The result is that criminal jury trials barely exist in Virginia. Only about 1% of felony cases are resolved by jury trial. And even that number is deceptively inflated because it doesn’t count the many felony cases that are resolved by reductions to misdemeanors. The most aggressive, experienced, and seasoned criminal defense attorneys in Virginia might handle 1 or 2 jury trials a year at most. And those are the rare ones. I know plenty of defense attorneys who have never handled a jury trial. This is a truly broken system.

The Virginian-Pilot story tells you that Virginia is one of only 6 states in the country with a jury sentencing scheme. (Arkansas, Kentucky, Missouri, Oklahoma, and Texas are the others). But what it doesn’t tell you is that only Virginia and Kentucky employ a mandatory jury sentencing scheme. We are truly bringing up the rear of the criminal justice wagon train on this one. If you’re one of only two states doing something and the other one is Kentucky, you probably need to take a long hard look in the mirror because you're not going to like what you see.

This is common sense legislation that brings Virginia in line with the entire rest of the country’s state courts and federal courts. It’s an absolute no brainer. But according to the Pilot article, not everyone is sold. Senate Minority Leader Tommy Norment opposes the bill saying “I have found that juries are pretty reasonable,” and as a defense attorney, he’s “never been confronted with situation where I felt a prosecutor was attempting to intimidate or leverage my client into a jury trial.”

Woooooh weeee. Don’t miss the hilarious Tommy Norment. He will be performing at the General Assembly all week.

First off, that was a long time ago. We learned appellate preservation the hard way. It took years and many trials worth of botched appellate issues and getting raked over the coals by Court of Appeals judges. We want a better life for you. So pour a glass of your finest Four Loko and cozy up. We're going to make you a lean, mean, appellate preserving machine in 5 easy steps.

Lesson 1: When Your Client Pleads Guilty (Or No Contest), You’ve Preserved Nothing For Appeal.

You put on a killer pre-trial motion to suppress all the terrible evidence implicating your client. All the caselaw was on your side but that mean old judge slept through the whole hearing and shot you down. Now you’ve got nothing to work with for trial so you plead your client guilty and note your appeal. Oooooh boy, you can’t wait to get into the Court of Appeals (CAV) to give that judge a stone cold stunner and get a reversal. Well, here’s the response that you’re going to get from the CAV:

When your client pleads guilty, you've waived basically every possible appellate issue. Whether it’s a Miranda issue, a 4th Amendment issue, a statutory interpretation issue, a sufficiency of the evidence issue; it all gets flushed down the toilet when your client pleads out. The only way to preserve your issues is by either (A) taking the case to trial or (B) entering a conditional guilty plea. An important note on conditional guilty pleas. You need to be very specific at the conditional guilty plea hearing about what issue you’re preserving. For example, “My client is entering a conditional guilty plea preserving his right to appeal the denial of a pre-trial motion to suppress the evidence heard on October 28, 2019 before the Honorable Judge Juan Valdez."

Lesson 2: Always Do Both Motions To Strike

This is appellate preservation 101, and yet we see experienced attorneys who don’t bother doing motions to strike. Whether you’re doing a bench trial or a jury trial, you need to do motions to strike in every case. And it’s not enough to only do a motion to strike after the Commonwealth’s evidence. You need to do a renewed motion to strike if you’ve presented any defense evidence. Do you want to see what we look like when we're reading transcripts and you didn't do motions to strike?

If you don’t do the motions to strike, you have waived any challenge to the sufficiency of the evidence. It’s that simple. Closing argument alone doesn’t get the job done. If you messed up and forgot motions to strike in the heat of trial, you haven’t screwed the pooch yet. You can still preserve sufficiency of the evidence by doing a post-trial motion to set aside the verdict.

An important note on motions to strike: We get transcripts that look like this.

Commonwealth’s Attorney: The Commonwealth Rests

Defense Attorney: Your honor, I have a motion to strike.

Judge: That’s denied.

Defense Attorney: Thank you

This shit doesn’t get the job done. You need to be specific on your motion to strike. Whatever you’re arguing the evidence hasn’t proven, you need to say it. For example, “Your honor, the evidence has failed to prove malice because of X, Y, Z,” or “Your honor, the evidence failed to prove an intent to distribute because of X, Y, Z.”

Lesson 3: Dude, You Have To Object

We get transcripts that look like this:

Witness: And I talked to my friend’s uncle who said that the defendant told him that he shot the victim and also that the defendant loves to kill people and he has promised to do it again if he’s found not guilty.

Defense Attorney: Objection! Hearsay! Confrontation! Improper Character Evidence! Outrage!

Judge: [shooting daggers at defense attorney] Sit down, this witness is a-testifyin'!

Defense Attorney: [attorney shrivels into chair] I’ll withdraw it.

You have to object to preserve issues. If you don’t object and come complaining on appeal for the first time, the CAV will send you a per curium order that says:

This is called the contemporaneous objection rule. If there’s objectionable evidence, testimony, jury instructions, voir dire questions, weird stuff the judge is doing, etc, you have to (1) actually object, (2) object immediately, (3) maintain your objection. We know from experience in the courtroom that it’s not always easy. Some judges are hostile. The record won’t reflect that the judge was staring you down like he was going to rip your throat out. You have to stick to your guns, object, and state a clear reason for your objection. If the judge talks over you or tries to move you along, you have to have the presence of mind to say something like, “Your honor, I have to make a record.”

Lesson 4: If You’re Denied From Getting Evidence In, You Have To Make A Proffer

This is another situation that happens all the time. A defense attorney tries to get in testimony or an exhibit and gets shot down. It usually looks something like this in a transcript:

Defense Attorney: I call Dr. Peter Venkman, expert on eyewitness identification.

Commonwealth Attorney: I object! This testimony will invade the province of the jury as the fact finder!

Judge: This testimony is all common knowledge and invades the province of the jury. Move on counsel.

Defense: okily dokily

If you’re ever denied from presenting evidence, you absolutely have to make a proffer of what that evidence would have been. In the above example, in order to preserve the issue for appeal, the defense attorney would have to say something like,

“Your honor, if Dr. Venkman was permitted to testify, he would have said…'This ID involves cross-racial ID, weapons focus, unconscious transference, that witness certainty is meaningless, etc.”

You need to be specific in your proffer. The CAV is just itching to say they can’t rule on your issue because they don’t know what the testimony would have been.

If you’re denied from getting a tangible piece of evidence admitted like a photo, map, transcript, etc, then you need to ask for the exhibit to be admitted into the record as a denied/refused exhibit. This also goes for denied jury instructions. This is a scenario we’ve seen:

Judge: I’ve read the proposed jury instructions. I’m going to reject this instruction proffered by the defense.

Defense Attorney: Judge, it’s a really important instruction.

Judge: Your exception is noted.

On appeal, nobody has any freaking clue what instruction was denied. Your best practice is to (1) read the denied instruction into the record, (2) state why it’s necessary, (3) admit the denied instruction into evidence.

Lesson 5: If The Commonwealth Is Being Shady, You Need To Ask For A Mistrial

A scenario that comes up is when a prosecutor says a bunch of objectionable stuff usually in a closing.

Commonwealth Attorney: Ladies and gentlemen, this man here is a guilty dirty dog [points finger at defendant]. I know he’s guilty because I’ve been doing this for a long time and I know a criminal when I see one. And he hasn’t even taken the stand or presented evidence to defend himself. Does that sound like an innocent man to you?

Defense Attorney: Objection! This is improper argument!

Judge: It’s closing. I’ll allow it.

You might think that objecting to improper statements in an opening statement or closing argument is enough to preserve it for appeal. You would be wrong. You need to object AND ask for a mistrial (or cautionary instruction.) This can be a really tough one because many judges hate objections during closing arguments. But that’s why they pay you the big bucks.

Conclusion

The most fundamental thing that you can do to get better at preserving issues for appeal is to always be asking yourself the question, "What is the record going to look like for somebody looking at it for the first time who wasn't in the courtroom?" Things that seem obvious in the courtroom don't always come across in transcripts. If you have a trial coming up and you're worried about preserving an appellate issue, feel free to give us a call. We probably messed it up at some point and can steer you in the right direction.

In my last blog post, I slammed a local attorney for playing fast and loose with facts and advocating the prosecution of public defenders who spray painted a confederate monument. Since that post, I’ve had a couple of attorneys reach out to me in good faith who thought that I was too flippant in dismissing criticism of the spray painting as “pearl clutching.”

I’m happy to engage with people who want to have an intellectually honest discussion so I felt compelled to follow up. It’s true that people cannot feel free to simply disregard laws because they feel that something is unfair or wrong. While I personally feel that confederate symbols in our cities are deeply offensive, it does not logically flow that anything goes when it comes to destroying them. So it’s perfectly fair to have a conversation based on facts about whether the public defenders should be prosecuted for spray painting them.

So I’ll start the conversation by placing myself in the position of a prosecutor deciding on a course of action. The first thing we need to do is agree on the facts of what occurred. The evidence appears to show multiple identifiable public defenders among a large crowd actively engaged in spray painting “BLM” on confederate monuments at 2:00 in the afternoon. There are multiple law enforcement officers present who make no effort to intervene. Have the public defenders committed a crime that should be prosecuted?

We’ve written previously about prosecutorial discretion. Commonwealth Attorneys as elected officials have wide latitude to pick and choose what they want to prosecute. For the sake of this thought exercise, I’ll place myself in the position of a prosecutor who is deeply disturbed by the public defenders' behavior and is actively seeking justification to charge them.

My first concern as the prosecutor would be that the defense will argue that the police were tacitly blessing the spray painting by not intervening. The destruction of property law 18.2-137(B) requires proving an intentional destruction of property. You can’t destroy property with a criminal intent if you reasonably believe that you had permission to destroy it. For instance, if I give a kid a rock and tell him that he has permission to wing it through my window, I can’t complain when he does. Of course, as the prosecutor, I would be arguing that police and/or politicians don’t have legal authority to grant permission to deface property. They’re not the owners. Moreover, there is no evidence that anybody explicitly gave the public defenders permission to deface the monuments.

My second concern as the prosecutor would be whether I could prove that the public defenders committed an intentional destruction of property versus an unlawful destruction of property. An unlawful destruction of property under 18.2-137(A) is only a class 3 misdemeanor punishable by no jail time and a $500 fine. An intentional destruction of property under 18.2-137(B) is a class 1 misdemeanor punishable by up to 12 months in jail. So what's the difference between unlawful and intentional destruction? As a prosecutor, I would have to be aware that the line between the two is extremely blurry. The Court of Appeals has held that unlawful destruction applies to criminally negligent conduct while intentional destruction has a higher level of mens rea. If the case went to a jury, a competent defense attorney would likely get a lesser included jury instruction on unlawful destruction and muddy the waters.

My third and largest concern as the prosecutor would be that it would be extremely difficult to obtain a conviction. In order to get a conviction from a jury, I would need to unanimously convince 7 jurors in a misdemeanor trial that the evidence proved beyond a reasonable doubt that the public defenders committed a criminal act. Jurors aren't robots. It is highly likely that the jury pool would include many people intensely sympathetic to the cause of protesting confederate monuments. And that’s not even taking into account that there would be legitimate problems proving criminal intent even in front of a prosecution friendly jury.

Yet another factor to weigh is that even if I overcame all hurdles and managed to convince a jury to find the public defenders guilty beyond a reasonable doubt, there is a good chance that the charge would ultimately be dismissed anyway. Unlawful destruction of property allows dismissal with payment of restitution. Misdemeanor intentional destruction of property can be dismissed on terms pursuant to 19.2-303.2. As a responsible steward of taxpayer money and my office’s resources, I would have the responsibility to ask whether the investment of manpower required to prosecute would be worth it.

So as a prosecutor, this is the summary of what I’m looking at:

1. Legitimate legal questions regarding whether I can prove mens rea

2. Multiple trials and a large investment of office manpower and resources

3. Defendants engaged in a cause that many view as righteous

4. Uphill path to convincing a jury to return a guilty verdict

5. Strong possibility of ultimate dismissal even if I overcome the odds

6. Almost certainty that prosecution will be highly controversial and serve to rip open festering racial wounds in the city

7. Defendants with no prior record who have devoted their careers to providing legal assistance to the poor

Even as a prosecutor aggressively looking for a reason to prosecute, I could not responsibly go forward with charges in that scenario. To do so would be self indulgent political theater that would detract from my office’s legitimate mission of prosecuting serious crime and protecting the citizens of the city. ​Also to make clear, I'm not that hypothetical aggressive prosecutor. My personal view is that what the PDs did was a safe and appropriate way of expressing solidarity with the community they serve. We become defined by the battles we pick. Something tells me that picking a fight against people of good conscience protesting morally abhorrent confederate monuments is not going to place you on the right side of history.

That’s my useless two cents. I’m obviously not elected by anybody, and I don’t even live in Portsmouth. Anybody is absolutely entitled to disagree with me. But let’s strive to have a conversation that is factually and intellectually honest. And reject those who seek to gain political advantage through dishonesty and demagoguery.

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I’m a social media luddite. I’ve never had a personal FaceBook or Instagram account. I reluctantly dipped my toe in social media waters only 2.5 years ago in order to advertise my new business. I quickly learned that social media is rife with bad actors who distort facts and manipulate public opinion to further their own agenda. Disturbingly, I also learned that this is the way that a considerable portion of the population consumes the majority of their news.

Last night, I was sent a video posted by local attorney and aspiring muckraking journalist Tim Anderson regarding protests in Portsmouth. In the video, Anderson identified three public defenders in Portsmouth by name and excoriated them for spray painting a confederate monument. He called for the lawyers to be criminally prosecuted for vandalism and asserted that state senator Louise Lucas had “incited a riot” by ordering police to stand down to a crazed mob. Anderson further claimed that he had high level information that a protestor named Chris Green struck by a falling statue during the protest had died from his injuries.

Within hours, the video had been viewed over 60,000 times with over 1,500 outraged comments. Many called for the state senator to be charged as an accessory to murder. Many called for the lawyers to be disbarred. A number of sociopaths celebrated that Green had gotten what he deserved. Well, imagine my surprise when it turned out that Chris Green is alive and in stable condition. Anderson’s shocking scoop was instead utter bullshit offered under the tempting guise of insider knowledge. And one thing I’ve learned from years in court is that once a witness or lawyer has lied to you once, there’s probably another pile of steaming dung right around the corner.

Lo and behold, the crap cornucopia was only beginning. Anderson’s claim that the public defenders were lawless criminals was also pulled straight from his nether regions. The reality is that several public defenders attended a large community protest in broad daylight at 2:00 in the afternoon. White and black community members gathered together to express their disgust at the presence of a racist confederate statue sitting at a site where slaves were once punished on a whipping post. With the apparent blessing of law enforcement and local politicians who were on-site, the public defenders participated with hundreds of others in (clutch your pearls) spray painting “BLM” for black lives matter on statutes as an expression of community solidarity. Criminals? Not so much. Standing up for the oppressed? That’s what public defenders do every day.

Should questions be asked about why authorities stood by and allowed amateurs to pull down statutes weighing thousands of pounds? Yes, it obviously wasn't safe. Unlike Tim Anderson, I won't pretend to know the facts and won't assign blame until an investigation has been done. As it turns out, ownership of a cell phone camera doesn't turn someone with no journalistic experience into the next Woodward or Bernstein. When facts are complex, good journalists provide reliable factual background information, “context,” to enable readers to draw their own conclusions. In this case, 60,000 people got the personal interpretations of a lawyer making shit up because he has a beef with a state senator.

But the family of Chris Green and the public defenders whose good names and reputation were dragged through the mud deserve an apology. To somebody like Tim Anderson, they're a means to a political end. Well guess what numb nuts? They're real people with real families getting hate messages from your followers. So while you're having fun playing amateur investigative journalist, your bullshit has real life consequences for them. Unlike you, they actually live in Portsmouth and serve their city with honor doing the thankless work of fighting for the poor. They don’t concern themselves with playing dress up journalist, FaceBook likes, or political kabuki theater. For their efforts, they’re rewarded with baseless attacks from a clown outsider with a political score to settle. Shame on you.

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https://www.facebook.com/watch/?v=688536371692266

We discuss:

• What to do if you're protesting and stopped by police.

• Some of the more common crimes charged as a result of the protests.

• Why the justice system is imbalanced and what can be done to fix it. Specifically, we propose pay parity between prosecutors and public defenders.

• The implications of courts endorsing police searches in "high crime neighborhoods."

The most commonly asked question in the aftermath of the George Floyd murder appears to be: What can I do to help? As a private criminal defense attorney and former public defender, my answer is: DEMAND EQUAL PAY FOR PUBLIC DEFENDERS.

The majority of public defender clients are black and minority defendants desperate for proper legal representation. One of the biggest problems with the public defender system is that it’s underfunded and PDs are severely underpaid. Prosecutor offices, on the other hand, always seem to be adequately funded and their attorneys properly compensated.

My hometown of Virginia Beach provides a perfect illustration of this pay disparity. An entry-level PD is paid somewhere around $52,000. An entry-level prosecutor is paid over $70,000. The city of VB financially supplements prosecuting attorneys but not public defender attorneys.

Now ask yourself the following: Which position is more valued by the system? Why do we allow a system that blatantly and disproportionately favors one side of the scale of justice over the other? Finally, who is to blame and what can I do to fix this problem?

The answers I have are as follows:

1. Educate yourself and others on the issue;

2. Organize a peaceful protest at your local courthouse;

3. Attend city/town council meetings and demand to be heard on the issue of financially supplementing your locality’s public defender office; and

4. Demand that elected officials – including prosecutors – support pay equality.

Rapper/activist Killer Mike from Atlanta gave one of the most moving and inspiring speeches in the immediate aftermath of the Floyd tragedy. Holding back anger through tears, he stated, “Now is the time to plot, plan, strategize, organize, and mobilize to beat up the prosecutors you don’t like at the voting booth.” That statement beautifully captures the dimension of calmness and coordination required in a time of inflamed passion.

VOTE on the issues that matter. DO something. SUPPORT equal pay for public defenders.

Our country is on fire after yet another unarmed black man, George Floyd, was killed by a police officer who kneeled on his neck until he was dead. Protesters have come to streets all over America, rightly furious, over this latest sordid chapter in the sadly recurring history of police brutality on minority communities.

We’re well aware that policing and the criminal justice system as a whole disproportionately touches the lives of black Americans. In our hometown of Virginia Beach, 49% of those charged with disorderly conduct and 57% charged with possession of marijuana are black despite being less than 20% of the city’s population.

If we’re going to make positive changes to how black communities are being treated, it requires that we all reflect on how we can individually contribute to break the current cycle. As criminal defense attorneys, we’re in the courtrooms almost every day and have seen how the courts subtly -- and sometimes not so subtly -- condone police conduct that targets minority communities.

We wrote previously about the case Hill v. Commonwealth in which police yanked a black man named Patrick Hill from his vehicle in broad daylight at 2:30 P.M. when he had done nothing illegal. The Supreme Court of Virginia recently gave their seal of approval ruling that the officers reasonably feared personal harm because they were in a “high crime” neighborhood and Hill was reaching down between the seats and could have been going for a weapon.

It’s not hard to see how cases like this one have a disproportionate impact on black communities. “High crime neighborhood” is often nothing more than a transparent code for black neighborhood. Subjective police fear is often nothing more than unfounded fear of “scary black men.” Trial courts and appellate courts need to do a better job of calling bullshit on this type of testimony.

Can you imagine the outrage if the police yanked a white Supreme Court judge from his car in broad daylight because he was reaching between his seats? Would we blindly accept an officer’s claim that he feared for his safety? Of course not. The fact that courts often accept that explanation when the case involves black men is nothing more than court sanctioned endorsement of the idea that black men are scary and thus less entitled to the protections of the law.

Let’s identify this for what it is and permanently cast it from our courtrooms. Testimony regarding “high crime” aka black neighborhoods needs to become a thing of the past. Testimony concerning officer safety needs to be tied to specific observations of criminal activity and not some vague notion of the defendant looking “nervous” or “reaching for an unknown item” that somehow never materializes.

So what can you do to help ensure that black and minority Americans get the legal representation that they desperately need and deserve? Considering the majority of black and minority defendants are represented by court-appointed attorneys, one step in the right direction is to DEMAND EQUAL PAY FOR PUBLIC DEFENDERS.

One of the biggest problems with the public defender system is that it’s underfunded and PDs are severely underpaid and under-resourced. Virginia Beach provides a perfect illustration of this pay disparity. An entry-level PD is paid somewhere around $52,000. An entry-level prosecutor is paid over $70,000. The city of VB financially supplements prosecuting attorneys but not public defender attorneys.

Now ask yourself the following: Which position is more valued by the system? Why do we allow a system that blatantly and disproportionately favors one side of the scale of justice over the other? Finally, who is to blame and what can you do to fix this problem?

The answers we've come up with are as follows:

1. Educate yourself and others on the issue;

2. Organize a peaceful protest at your local courthouse;

3. Attend city/town council meetings and demand to be heard on the issue of financially supplementing your locality’s public defender office; and

4. Demand that elected officials – including prosecutors – support pay equality.

Rapper/activist Killer Mike from Atlanta gave one of the most moving and inspiring speeches in the immediate aftermath of George Floyd's murder. Holding back anger through tears, he stated, “Now is the time to plot, plan, strategize, organize, and mobilize to beat up the prosecutors you don’t like at the voting booth.” That statement beautifully captures the dimension of calmness and coordination required in a time of inflamed passion.

VOTE on the issues that matter. DO something. SUPPORT equal pay for public defenders.

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A lot of people are wondering about the legality of Gov. Northam’s executive order requiring face coverings in public places that took effect on May 29, 2020.

This post is not intended to stir the political pot. We just want to give you the straight facts.

What authority does he have to issue the order?

Gov. Northam has invoked his authority under:

(1) Va. Code Section 44-146.17; and

(2) Article V of the Constitution of Virginia.

• Va. Code § 44-146.17 says he can take action on things “relating to the safety and welfare of the Commonwealth in time of disasters.” These powers are fairly broad. Using "his judgment", he can make relevant rules and regulations about the use, sale, production, and distribution of food, fuel, clothing and other goods and services. He can direct or compel evacuation when necessary for preservation of life. Also, there’s a provision that addresses “exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area of the Commonwealth.”

• Article V of the Constitution of Virginia explains what a “governor” is and that he’s the leader of the executive branch. That makes him one-third of the state government. Under the law, he actually has a lot of authority in the matter.

What are the penalties for noncompliance?

If you’re an adult and you’re busted without your mask, you could be charged with a class 1 misdemeanor punishable by up to 12 months in jail and a $2,500 fine. The order says minors won’t be criminally charged for violating the order.

Is the order constitutional?

That’s more complicated than some on both sides of the issue would have you believe. At this moment, mandatory face coverings are the law of the land whether you like it or not. The only way the order can be declared unconstitutional is if a court declares it unconstitutional. There’s always a chance that could happen. However, you can’t willy-nilly say you think it’s unconstitutional and have it be so. If you want to challenge the order, you have to take it to court. Separation of powers and the principle of judicial review vests decisions whether a law is constitutional in the judicial branch of the government.

Who does the order apply to?

It applies to anyone over 10 years old. Adults are being asked to use “best judgment” for children between 2 and 9. There are some exceptions. For instance, you can remove your mask while eating and drinking, or while participating in a religious ritual. The order says you also need one in Uber/Taxi-type situations. Oddly, you can go to the gym, take your mask off and hyperventilate on the equipment to your heart’s content.

Look, I share the annoyance with face masks. I have to wear one in court. They’re uncomfortable. They’re depressing. But politics aside, straying outside the legal apparatus on this one brings you more into anarchist territory than it does patriot territory. There is a place for civil disobedience, but we’re talking face masks during a pandemic, not segregation. However, our firm will be more than happy to defend you if you do get charged for not wearing a mask. While I’m personally fine with the order, I genuinely feel there are some good-faith legal arguments that could be made against it (i.e., as of right now are we actually in a “time of disaster”? Is this really an “emergency” as contemplated in the code?).

For more detailed information, read the official order itself and the Commonwealth's official frequently asked questions page. For more information about our firm, visit our website.

Virginia Beach, VA – After receiving awards proclaiming him a "Super Lawyer," "CoVa Biz 2020 Top Lawyer," and "Top 40 Under 40," local attorney Bassel Khalaf has declared himself "Supreme Lawyer King Extreme Deluxe" and announced the reopening of the courts as the first day of a new calendar year called "Year 37 After Birth Of Khalaf."

"The lawyer awards have spoken," Khalaf said. "By recognizing me as the king of kings among attorneys, I have no choice but to humbly assume the wheel of the criminal justice system and steer us all to a glorious future." Dressed in full regalia displaying his lawyer awards and flanked by members of his elite Super Lawyer Guard, Khalaf told his subjects, "Let all the peoples of my lands know this: The age of tyranny, corruption, and ignorance in our court system is over. The great cleansing fire is upon us."

While most local attorneys have already sworn loyalty to the new Khalaf regime, some have expressed reservations. "I mean these lawyers awards are silly. These are for-profit companies that have never seen any lawyers in court. They're tacky and highly deceptive," said local public defender Michael Castillon. Shortly thereafter, a burlap bag was thrown over his head and he was sent to "re-education camp." To squelch any further rebellion, Khalaf ordered the leaders of the local bar association to be publicly fed to his pet tigers and their heads displayed on iron pikes in front of the Virginia Beach courthouse.

Despite these early signs of repressive behavior, Khalaf promised a new and prosperous era stating, "While I have been reluctantly forced to take absolute power, I do so only in the interest of all lawyers without awards who are too simple to be trusted to fend for themselves. Rest assured that I am but a benevolent father protecting my flock. Together we shall heal our great legal system, and the blood of any infidel attorneys will run like a raging river through the streets. Now how about a Denver omelette at Egg Bistro?"

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Westendorf & Khalaf, PLLC is pleased to announce the addition of Jabba the Hut as a new associate attorney. In this position, Jabba will be involved in assisting the firm’s growing areas of defense practice, including cases involving human enslavement, spice trafficking, gambling, illegal pod racing, and Jawa property disputes. Jabba received his Juris Doctor from Regent Law School and recently passed the Virginia Bar Exam. Jabba was born and raised on Tatooine and was a member of the Grand Hutt Council prior to practicing law. He was feared dead after an incident on his sail barge at the Great Pit of Carkoon. Taite Westendorf, one of the partners of Westendorf & Khalaf, said, “We are thrilled to have Jabba as part of our team. He is an extremely shrewd and hard-nosed negotiator. We have made a commitment to adding lawyers from diverse backgrounds to meet the demands of our growing practice and the needs of our clients. Hiring Jabba helps us continue to provide the exceptional legal services that our clients have come to demand and expect.”

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Even in our current era of intense polarization, the video of Ahmuad Arbery being pursued, shot, and killed by father and son Gregory and Travis McMichael united most of the country over the past week. Donald Trump called the footage “very, very disturbing” while Joe Biden described Arbery as “being lynched before our very eyes.” Although Arbery was killed all the way back in February, it was only after the video went viral that the McMichaels were arrested following widespread outrage.

In a bizarre twist to the story, the New York Times reported that the person who leaked the video to the media “turned out to be a criminal defense lawyer in town who had informally consulted with the suspects.” The lawyer, Alan Tucker, explained that his reason for leaking the video was to dispel rumors that had caused tension in the community. He added that releasing the video “got the truth out there.” “My purpose was not to exonerate them or convict them.” In an interview published today on law.com, he responded to criticism of his involvement stating, “If we tell the truth, we get justice. It’s why we take an oath to tell the truth, the whole truth and nothing but the truth.”

Before I dive into Tucker’s involvement, let me state the obvious. Based on what the video shows, the McMichaels absolutely should be charged with murder and whoever represents them will have their work cut out for them. No reasonable person has any pity for their current situation. This post is not about justice. The just thing was for the McMichaels to be arrested and to ultimately face trial.

The reason that I’m writing this post is because as a criminal defense attorney, I am shocked by Tucker’s involvement and his attempts to justify his actions. According to the law.com article, Tucker has been a practicing lawyer for almost four decades. Surely, he knows about attorney-client confidentiality. Hell, any first year law student, and probably most lay people, are familiar with the concept of attorney-client confidentiality. The basic idea is that lawyers can’t share what they’ve discussed with clients or prospective clients without their permission. While the Times article described an “informal” consult, whatever that means, there is no difference when it comes to confidentiality. Any conversation with a prospective client, no matter how “informal,” is covered by confidentiality.

The reason for attorney-client confidentiality is straight-forward. Defense attorneys are supposed to defend people, not throw them under the bus. It’s not possible to have a functioning adversarial system if people charged with crimes have to worry that their defense attorneys might turn on them at any moment in order to “get the truth out there.” For some people, this might be a difficult concept but a defense attorney’s role is not to “seek justice” or to “to tell the truth, the whole truth, and nothing but the truth.” Our role is to defend our clients. Tucker did exactly the opposite of serving his clients. No amount of spin on his part makes stabbing his clients in the back honorable. It doesn’t matter if they didn’t ultimately hire him. It doesn’t matter if the police already had the video. He had a duty of loyalty and confidentiality to them from the moment they had contact with him.

This situation is sure to inspire future law school ethics exam questions because it presents a classic situation where our ethics as a human being may collide with our ethics as a lawyer. If Alan Tucker were a regular citizen who leaked the video, I would view his actions as heroic. But for the leaked video, it seems possible, if not likely, that the entire incident was being swept under the rug. That would have been disgusting. But Alan Tucker was not a regular citizen. He was a lawyer who was duty bound to protect his clients whether they ended up hiring him or not.

Alan Tucker might be a nice guy. He probably considers what he did to be morally righteous. But what he did should result in him being disbarred. His actions led to his clients being arrested for murder which is inexcusable. I’m glad that Ahmaud Arbery’s killers have been arrested. I am also disturbed that an attorney brazenly violated his oath. Both things can be true.

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In October 2017, actress Alyssa Milano unleashed a cultural tsunami when she tweeted an invitation for women across the world to share their stories of sexual harassment and assault. Tens of millions of tweets later, the #MeToo movement has had an impact at all levels of society, and signaled a huge shift in the past attitudes surrounding sexual assault and responsibility.

To say that the impact of #MeToo has been complicated would be an understatement. In some high profile cases such as Harvey Weinstein and Bill Cosby, accusations were vetted in the criminal justice system. There was discovery, testimony from the accused, cross-examination, and defense evidence that resulted in findings of guilt beyond a reasonable doubt. But those situations have been the exception. Most high profile accusations are instead being litigated in the quasi-court of public opinion. Now Joe Biden finds himself taking his turn after a former staffer accused him of sexually assaulting her 27 years ago. Editorials published in the New York Times and Washington Post among others have argued that Democrats should already be planning to kick Biden to the curb as their nominee. One can only hope that Biden's team crafts a better way to navigate this crisis than Brett Kavanaugh's approach.

We know that historically women have been blamed for many sex crimes committed against them. We share in the belief that bullshit like “she shouldn’t have been there at that time of night” or “why was she dressed like that” should be permanently cast into the garbage heap of outdated ideas. But, (here comes the but)... While the #MeToo movement should be commended for raising awareness of the prevalence of sexual assault, there is a very legitimate concern that innocent people are getting steamrolled in the process.

Some of you may be saying to yourselves “But due process rights don’t apply in the court of public opinion.” Some of you might argue that, for hundreds of years, women were shamed for rape while male aggressors paid no price. The #MeToo movement is simply a necessary correction to a skewed power dynamic that has favored men over their victims for hundreds of years. Some of you might even be onboard with #BelieveWomen and say that allegations of sexual harassment or sexual assault should always be taken at face value.

As criminal defense attorneys who have represented people thrown in jail on false accusations of sexual assault, we find that approach to be terrifying. Nobody is entitled to being believed and gender has nothing to do with credibility. We’ve seen clients who were locked in cages and had their lives destroyed based on stories that dissolved into wet mush once exposed to the slightest scrutiny. The simple fact is that accusers should be entitled to an opportunity to be heard and taken seriously. Nothing more and nothing less.

It’s true that as a legal matter, due process rights are only triggered when the government is involved. So yes, persecution/prosecution by social media mob is a different animal. But just because there are no rules in the court of public opinion doesn’t mean that we shouldn’t honor basic principles such as the presumption of innocence, a thorough evaluation of credibility, and a demand for evidence. Destroying an innocent person's reputation isn’t as bad as putting them in jail, but it’s still awful. Sometimes, rumors are worse than a trial, because no one ever knows for sure. A good witch hunt ensures that a person accused of the crime will pay a high price regardless of the outcome. Once the accusation is made, the damage is done.

It's hard enough for trained professional lawyers to try sexual assault cases in courts of law. So how do we even begin to form a functioning #Metoo Public Opinion Court? The true story of any alleged sexual assault accusation is often difficult to untangle. There’s what she said, what he said, what everyone else there said, each person’s mental stability, and sometimes years and even decades between the event and the accusation.

We have a choice to make as a society. Do we blindly believe accusers because it’s the super-woke thing to do at the moment or do we honor principles developed over hundreds of years to protect innocent people from being destroyed by mere accusation. #MeToo exposed pervasive abuses of power and gave many victims the courage to come forward. That’s a great thing. But an accusation doesn’t equal guilt and not all accusers are equally credible. Unfortunately many people don’t find an appreciation for due process until they find themselves or someone they support on the wrong side of the finger of accusation.

Blind belief in strangers is a recipe for disaster. It’s on us as a society to find a better path forward. It's certainly not easy, but we must strive to create a climate of respect and accountability where anyone with a legitimate claim can feel free to come forward; where mob rule has no place; and where due process principles are honored.

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With yesterday's announcement of a stay at home order, it doesn't appear that courts will be fully open for business anytime soon. Other than bond hearings and arraignments, the plows of the courthouse have gone silent and the fields of justice lay fallow. But W&K remains hard at work. Every morning we throw our legal briefs into the back of our F-150s and head out to get results for our clients. This morning that meant getting bonds for two clients who had already been previously denied bond. We’re thrilled that we were able to help reunite them with their families.

Our approach to appeal bond hearings is inspired by the should-have-won-an-Oscar masterpiece Lone Wolf McQuade. In the most famous scene, the titular hero played by Chuck Norris is captured and savagely beaten by the villain, an arms dealer and Kung-Fu expert portrayed by David Carradine. The villain places our severely weakened and semi-conscious hero into a Dodge Ramcharger and orders henchman to bury Lone Wolf alive. While this appeared to be an ignominious end for Lone Wolf, the villain failed to account for one variable. Running out of oxygen and on the verge of death, Lone Wolf discovers a can of beer in the truck. He pops the golden beverage and pours it all over his head, face, and down his throat. Miraculously revived by the barley, hops, and water, Lone Wolf throws his '83 Ramcharger into drive and pushes pedal to the metal. The vehicle, apparently achieving momentary sentience, becomes inspired by Lone Wolf’s passion and erupts from the dirty tomb. He then proceeds to lay waste to the remaining bad guys.

At this point you may be wondering what the hell does this have to do with bond hearings. It’s very simple. If you’ve been arrested and denied bond, you likely feel like Lone Wolf McQuade: alone, beaten, and buried. But you still have hope. As Lone Wolf found salvation in a can of beer, you can find yours by calling W&K. We look forward to serving you like a supercharged ‘83 Ramcharger and ramming you straight out of jail!

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At W&K, we always strive to be fashionable. To that end, we've just returned from the runways of NYC and you will soon be seeing us in court rocking the latest cutting edge of men's suits.

Other than inflatable pants, nothing is more fashionable right now than criminal justice reform. Effective July 1, 2020:

Possession of up to an ounce of that demonic weed is decriminalized. Well alright, alright, alright.

No more driver's license suspensions for unpaid court costs and fines. F the man!

Felony larceny threshold doubled from $500 to $1000. Take that Target!

For real, these are all common sense steps in the right direction. But now it’s time for legislators to swing for the fences in 2021. We have it on good authority that many members of the Virginia General Assembly are big fans of the W&K blog so we’re here to help them out. Here are 6 officially endorsed W&K changes to the law that can improve the criminal justice system in 2021.

1. Jury Sentencing Gets The Ax

We’ve written extensively on the absurdity of jury sentencing here and here. In Virginia, our system after a jury trial is to send 12 amateurs into a room without sentencing guidelines and have them blindly flail. It’s like handing a scalpel to a child and letting them waltz into the operating room. What could go wrong, amirite?

It's a deeply stupid system that produces insane results. The stats show that Virginia defendants who had a jury trial and lost were about 5 times more likely to receive a super harsh sentence. The very simple solution is to get rid of jury sentencing like almost every other state. We support the proposed new law by Senator Joe Morrissey that would eliminate jury sentencing unless the defendant requests it.

2. Allow More Options For Deferred Findings

This is another subject that we’ve written on extensively. The idea is to allow certain people (typically people with no criminal record) to avoid convictions by doing things like completing treatment, doing community service, and paying restitution. The problem is that those meddling Court of Appeals judges keep getting in the way by publishing opinions saying that deferred findings aren't a thing.

One proposed new law would give courts way more latitude to fashion deferred findings. W&K approves!

3. Get Rid Of Mandatory Minimums

Imagine if this is how we handled sentencing hearings: The judge was told nothing about the facts of the case. The judge was told nothing about the background or record of the defendant. Instead, the judge is only told what the defendant has been charged with and instructed to impose a specific sentence. Pretty asinine, right? The General Assembly needs to take the cuffs off our poor judges.

Mandatory minimum sentences have always been nothing more than a cheap political stunt, and a giant transfer of power from judges to prosecutors. There is not a shred of evidence to support that they're effective. It’s not rocket science folks. Let judges hear the facts of the case and the background of the defendant so that they can fashion an appropriate sentence. We fully endorse the bill sponsored by Senator John Edwards that would eliminate all mandatory minimum sentences.

4. Get Rid Of Direct Indictments

This is another topic we’ve discussed in a prior blog post. In Virginia, criminal defendants charged with felonies have a "right" to a preliminary hearings. Preliminary hearings are super important to the defense. In fact, they're usually the defense's only opportunity to hear testimony from the key witnesses prior to trial. But why is the word "right" inside those scary quotation marks? Because it's a pretty limp "right" that the prosecution can take away whenever they want through a process called direct indictment.

If the "right" to a preliminary hearing is going to be more than a wet noodle, the General Assembly needs to write a better law. We suggest something along the lines of "no person prosecuted on a felony shall be tried in circuit court without a preliminary hearing or the defendant's written waiver of a preliminary hearing." See, that wasn't so hard!

5. Eyewitness ID Reform

This issue is near and dear to my heart. My first jury trial was a mistaken identification case. I’ve personally handled multiple cases where we conclusively proved mistaken identification (including a murder case). All of the evidence shows that eyewitness misidentification is the leading cause of false convictions by far.

So you would think that Virginia would take identification issues seriously.

There is no law in Virginia governing how lineups are conducted. Instead, the best we have is an unenforceable model policy on lineups. It's kind of like if Virginia had a model policy but no actual law that houses shouldn't be insulated with asbestos.

Well we’re in luck because North Carolina has a lineup law that we can steal. G.S. 15A-284.5 mandates double blind administration, sequential lineups, and a host of other best practices of ID procedure. If the police blow off the requirements, there is the novel concept of consequences.

6. Allow People To Expunge Old Non-Violent Convictions

The current law in Virginia only allows expungement of criminal charges that have been dismissed or dropped. If you were convicted, you're out of luck no matter how old the charge.

Why not add a provision that allows for the expungement of non-violent charges after a certain period of time? Does the world need to know that a 30 year-old was arrested for being drunk in public when he was a teenager? A 2009 Justice Department study found that a past criminal conviction of any sort reduced the likelihood of a job offer by 50 percent. It doesn't make any sense to permanently block people from reaching their economic potential for youthful mistakes. Our suggestion is a law allowing for the expungement of non-violent misdemeanor convictions after 5 years of no new convictions and non-violent felony convictions after 10 years of no new convictions.

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