Virginia Supreme Court Says 'No Thanks' To Improving State's Dismal Court System

from the Brady-violations-will-continue-until-morale-improves dept

Criminal defendants face a tilted playing field all over the country. If it isn’t the frequent withholding of exculpatory material by prosecutors, it’s everything leading up to it — beginning with questionable interrogation methods and continuing with the admission of dubious physical evidence.

Virginia’s playing field is more slanted than most.

Although prosecutors in Northern Virginia mostly make their files available to defense lawyers, that’s not true across the Commonwealth, defense lawyers said. “Justice is different in one jurisdiction than the next,” said Norfolk defense lawyer Douglas Ramseur. “You could be charged in Richmond and Norfolk and get a completely different amount of information. That seems to me completely inappropriate and unseemly for our system.” He added that prosecutors who like one defense lawyer may provide more access than to a lawyer they don’t like, giving prosecutors unfair leverage.

There’s no consistency across jurisdictions. Even at its most accommodating, the amount of information available to defense lawyers pales in comparison to what can be uncovered in civil proceedings. Apparently, when it’s only someone’s freedom on the line, Virginia’s judicial oversight feels “barely adequate” is more than enough.

It’s gotten bad enough that the state’s Supreme Court empanelled a Special Committee on Criminal Discovery Rules in 2013. In early 2015, a preliminary report was issued. This was followed by a letter from the state’s ACLU, which highlighted some of the suggested fixes.

The proposed Rule 3A:11[b] would allow the defense to inspect “all relevant police reports,” such as “reports of interviews of witnesses.” The new rule would also allow the inspection of “all relevant statements of any non-expert witness,” including written or signed statements, transcripts, or recordings.

The inclusion of police reports and witness statements in the routine discovery process will greatly improve the adversarial process. Under the proposed rules, defense attorneys will have access to the most basic information about their clients’ cases. No person should have to stand trial without knowing basic information about the government’s case against him. And in a criminal justice system that “is for the most part a system of pleas, not a system of trials,” defendants must have access to this critical information before trial so that they can make an informed decision about whether to take a plea bargain or go to trial.


Proposed Rule 3A:11(i) would, for the first time, formally enact the rule of Brady v. Maryland into Virginia criminal procedure. More than 50 years ago, the United States Supreme Court held that, as a matter of federal constitutional law, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution…

This proposal is consistent with Brady and with adversarial principles. By requiring disclosure of exculpatory evidence upon indictment, waiver of indictment, or before entry of a plea, and by requiring the disclosure of impeachment evidence seven days before trial, the proposed rule provides stronger protection to defendants than offered by current constitutional jurisprudence…

By making clear that prosecutors must make disclosures of Brady evidence before trial, the proposed rule would place appropriate emphasis on the duty of a prosecutor to seek justice, not merely to convict.

The discussion continued throughout 2015. The panel’s suggestions were opened for public comment and the state’s defense attorneys began looking forward to more equitable evidence sharing in the future. Virginia courts, where “trial by ambush” is the norm, would perhaps start moving towards something resembling the balance envisioned by the nation’s founders.

Two years after the process began, the same Supreme Court that brought the committee into existence has rejected all of its suggestions. A single-paragraph announcement by the court states nothing will change.

On December 2,2014 came the Special Committee on Criminal Discovery Rules and submitted its final report, which included proposed revisions to Rules 3A:l1, 3A:12, 7C:5, 8:15, and which also proposed the adoption of Rule 3A:12.1. Having considered the Committee’s report and the public comments submitted in response thereto, the Court declines to adopt the Committee’s recommendations.

Not a single recommendation adopted. A project that lasted two years and gathered more than 300 pages of public comments is nullified by 63 words. The court’s excuse for this? It would have been difficult to implement even one of the recommendations because so much of the state’s judicial system is in dire need of an overhaul.

Virginia Chief Justice Donald W. Lemons said in a statement to The Washington Post that the entire proposal was simply too much all at once. While commending the report, Lemons wrote that “such fundamental and sweeping changes in the system, especially in light of the strong public comments opposing them, seem unwise at this time.”


“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.”

“Difficult” maybe. But not impossible. Rather than engage in a task worth undertaking, the court has opted for stasis, because it’s easier than dealing with the multitude of problems it has failed to address in the past. And it must be noted that the “opposing” comments the Chief Justice refers to in his cop-out were submitted by the beneficiaries of the broken system — and those comments were in the minority.

[T]he Supreme Court asked for public comment and received 318 pages of letters and emails. The overwhelming majority, coming from defense lawyers and some defendants, supported the rules changes. But the Virginia Commonwealth’s Attorney Services Council and Virginia State Police filed long, detailed objections.

When in doubt, defer to the “winning” team — the one that always receives the lion’s share of judicial deference. Better an innocent man do time than a few proposals upset the delicate balance of the skewed system by screwing with their “interdependence.” No matter how the Supreme Court of Virginia spins this, the refusal to move forward is weak, cowardly and will do further harm to criminal defendants. And all the while, the judicial system will continue to pretend a “fair” trial can be had within the state’s courts.

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Comments on “Virginia Supreme Court Says 'No Thanks' To Improving State's Dismal Court System”

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That One Guy (profile) says:

Beyond pathetic

So because it would take work, they ignore all proposed fixes and patches to the currently completely broken legal system and leave it as-is.

The Virginia Supreme Court has made their position on the idea of justice clear, namely that they don’t care if innocent people end up behind bars so long as prosecutors can continue to rack up convictions.

Coyne Tibbets (profile) says:

It's all explained

I found out why the recommendations were trashed. This is from an ACLU Virginia article:

Before she retired last year, former Chief Justice of the Supreme Court of Virginia Cynthia Kinser formed a Special Committee on Criminal Discovery Rules.

Maybe new Chief Justice Donald W. Lemons couldn’t stop the committee Chief Justice Kinser started, but he can sure ashcan the result. Out with the old regime, long live the new regime.

That was bound to happen even if Lemons agreed with the committee conclusions.

Fluffy (profile) says:

Perhaps there are other paths...

It doesn’t change the Brady requirement, even though there aren’t new formal procedural guidelines. While it doesn’t make it easier for defendants to get information, prosecutors still have a Brady obligation. Defense lawyers need to file complaints and seek disbarment for prosecutors that fail to live up to their obligations. Filing a federal rights case that gets class action status and results in a court ordered procedural change might achieve some of the most needed reform. Even just one Nifong level publicity case might be sufficient.

Anonymous Coward says:

Re: Perhaps there are other paths...

Proposed Rule 3A:11(i) would, for the first time, formally enact the rule of Brady v. Maryland into Virginia criminal procedure.

Gotta say that the whole Brady thing confuses me here. Is it the case that they still follow the Brady requirement, but are allowed to do it ‘Beware of Leopard’ style? Because it really sounds like they’re treating a requirement as ‘optional’, and that the rejected ‘Proposed Rule 3A:11(i)’ simply says ‘obey the law’.

fluffy12 (profile) says:

Re: Re: Perhaps there are other paths...

The Brady case was about a constitutional right, so everyone has to follow it. And by everyone, it means the ruling applies to residents in all states. What doesn’t exist is a formal procedural set of guidelines/rules on how to meet the requirement for Virginia. The rejected set of rules said things like, “You must divulge this information by this date.” I agree that they seem to be treating the requirement as ‘optional’.

Bees! says:

Re: Perhaps there are other paths...

Yeah, I was wondering about this too. The article suggests that Brady didn’t apply to VA state cases- thus requiring a formal implementation- but if I recall correctly Brady was based on the due process protections in the 14th Amendment, which one would expect to extend to the states.

I’ve only practiced civil and administrative law, so maybe a criminal lawyer can better address this.

Anonymous Coward says:

They just don't process the evidence

I sat on a jury in Virginia this year for a murder trial. There are – what – like 90-100 murders in VA each year?
DNA evidence was collected at the scene, but it wasn’t processed.
The defense didn’t object to this.
The defendant admitted he had been at the scene, but was accusing a 3rd party of the deed.

How can they collect DNA and not even process it? Huh?
There was a hung jury then, but the next jury strung him up. The news article about the 2nd trial reported the same circumstantial evidence we had been presented with. – – No physical evidence, only circumstantial evidence. Huh ?

Wendy Cockcroft says:

Re: They just don't process the evidence

Prosecutors and judges, etc., like to be seen to be tough on crime and those people who want to see something being done will go along with it until they are the ones in the dock.

The rule of law and the upholding thereof is your guarantor of freedom and civilisation. Letting go of either of those is the guarantor of tyranny and lawlessness.

Mason Wheeler (profile) says:

Apparently, when it’s only someone’s freedom on the line, Virginia’s judicial oversight feels “barely adequate” is more than enough.

Freedom. Heh.

Remember that this is a slave state we’re talking about, and not just any slave state; Virginia’s the one that was so bad that when they seceded, a huge amount of their own people seceded from them. And the South’s refusal to get over how that all turned out is so infamous it’s become a cliche. So it’s not surprising that the people in charge down there don’t seem to have much regard for freedom.

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