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Criminal Trial Before and After Absentee Prosecutors

You win some, you lose some.

In the past, I would take my traffic and criminal cases to trial because the case hinged on a difference of opinion on the legal merits; the prosecutor felt the facts favored the Commonwealth (the word we call the state of Virginia and the prosecutor’s client, technically speaking) and I felt the facts favored my client, the defendant.

Sometimes, the facts did not favor my client at all, but the prosecutor would not give me a reasonable offer to which my client could plead guilty. In fact, the offer would often be the same outcome a judge might give if we went to trial so there was nothing to lose by going to trial.

Sometimes, I felt I could beat the prosecutor’s offer and could not do any worse if I went to trial. We call those types of prosecutors “unreasonable”. They’re not serving justice necessarily. They just don’t want to do what may be the just or fair thing to do.

There, of course, were many other reasons to go to trial or not such as variations of a client’s criminal history or the type of judge we had, or even a difficult prosecutor who would drop the charge only to direct indict in the circuit court if we did not take an offer. Don’t worry what this actually is. All you need to know really is that a prosecutor plays dirty sometimes.

In the end, by going to trial for whatever reason, I would win some and I would lose some. Most times it was okay because if we had lost, the client would have an option to appeal the decision of the judge and get a do-over in the circuit court.

This is all sort of in the past. Now, without a prosecutor in two major jurisdictions (Fairfax and Arlington) there is no prosecutor in almost every misdemeanor case to negotiate and discuss the merits of the case. And you can refer to my other blog post Fairfax County Prosecutor Places Limits on Cases Will Prosecute, but now we’ve come to find that it’s because they’re claiming they don’t have enough prosecutors to “prosecute” cases where previous Commonwealth Attorneys were able to. It’s just continuing to get worse and worse. Each week, I see police officers and state troopers growing more and more tiresome of not only bringing a case to court by charging someone, but having to “prosecute” a case all because a case that should be worked out with a prosecutor has to go to trial. Just a few days ago, I went to trial on a case where the judge did more than ask clarifying questions. He went on and asked questions of the complaining witness and established jurisdiction and venue as well as other elements of the alleged offense! I still won the trial, but why is a judge doing what a prosecutor should be doing? I see more and more attorneys, myself included, having to risk more in a trial because the prosecutors refuse to be involved in cases. Yes, the reward is greater, but the risk is at an all time high.

The risk is now greater because now if you lose a case and appeal it and you request a jury trial, your case won’t go forward until early to mid 2022. Yes, over a year and half from now. You ever hear the saying, “Justice delayed is justice denied”? Well, when someone’s livelihood depends on a case’s resolution, that’s exactly what is happening. Justice denied. Fairfax and Arlington need to do something about their absentee prosecutors or else everyone will continue to carry the burden because the Commonwealth Attorney is not doing their job.

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