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The prosecutor who giveth preliminary hearings may taketh away

November 15, 2017

 

 

Nolle prosse.  Good god.  What is it good for? Absolutely nothing. Say it again.  That was my thought after reading the unpublished CAV opinion Bland v. Commonwealth that came out today.  The basic facts were the following:  Bland was charged by warrant with second degree murder, malicious wounding, two counts of use a firearm in the commission of a felony, and possession of a firearm by a felon.  As experienced criminal attorneys will know, the first step in a felony prosecution is usually a preliminary hearing.  Preliminary hearings are extremely important to criminal defendants.  Despite an oft repeated quote by some GDC judges that preliminary hearings are "not a discovery hearing," that's exactly what they are in reality.  In fact, it's often the defense's only opportunity to hear testimony from the key witnesses prior to trial.  

 

Prior to Bland's preliminary hearing, the Commonwealth direct indicted him on charges of first degree murder, aggravated malicious wounding, robbery, and three counts of use of a firearm in the commission of a felony stemming from the exact same incident.  After getting the indictments, the Commonwealth nolle prossed Bland's warrants and for poor Bland it was go directly to Circuit Court, do not pass General District , do not collect your preliminary hearing.  How did the Commonwealth pull this off?  It's pretty simple actually.  The appellate courts have ruled that the right to a preliminary hearing only applies to charges brought by warrant and not to charges brought by indictment.  No warrant, no service. 

 

Does this make any sense?  Not that I can discern.  I remember when I interned in a prosecutor's office in law school and first learned about direct indictments.  My first question to my supervisor was "if you can do this, then why don't you direct indict everything and never allow the defense to have a preliminary hearing?"  Her answer was "ummm, for the most part it's not considered sporting, but we could do it in most cases if we wanted to."  So there you are Virginia defense attorneys.  Your "right" to a preliminary hearing is nothing more than a gift bestowed by the Commonwealth subject to revocation at their whim.   

 

So who is to blame?  I don't blame the Court of Appeals.  They're only interpreting the preliminary hearing statute law as its written.  I don't blame the Commonwealth either.  They wanted to convict a murderer, and they weren't going to worry about being "sporting" along the way.  I do, however, blame the General Assembly.  If the "right" to a preliminary hearing is going mean anything, they need to write a better statute.  Maybe 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."  That wasn't so hard.  If I didn't know any better, I would think that the General Assembly was deliberately giving prosecutors a massive advantage.  Say it ain't so! Maybe I shouldn't complain too much or they’ll take away what we've got.  Please sir, may I have another.   

 

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