Va. decides not to change rules that withhold documents from defense

Washington Post – by Tom Jackman

The criminal justice system in Virginia appeared to be on the verge of radical change, at last. In a state where defendants are not entitled to the police reports in their case, the witness statements against them or even a witness list, a prominent committee issued a detailed report late last year proposing to carefully change all that, and more.

“Where trial by ambush has been the norm,” committee chair and retired Loudoun Circuit Court Judge Thomas D. Horne wrote, “there is now clarity and transparency.”  

But in a one-paragraph order issued by the Virginia Supreme Court last month, the entire report was shelved. The court, which empanelled the Special Committee on Criminal Discovery Rules itself in 2013 after nine years of study by prior groups and decades of complaints from the defense bar, “declines to adopt the Committee’s recommendations,” its order read, with no further explanation.

Many of the committee’s participants, including prosecutors, judges, defense lawyers, professors and police officials, who spent a year meeting and arguing and proposing changes to the Supreme Court’s rules on criminal discovery, said they were flabbergasted that not a single change was adopted. Veteran defense attorneys across Virginia, hopeful after the proposals were issued in December 2014, were again discouraged.

“The fact that the Supreme Court is saying ‘No, we’re not going to do it’ without further explanation is just very upsetting and beyond frustrating,” said Loudoun defense lawyer Alex Levay, who had worked on or chaired various rules committees since 2004. “It’s unbelievable we’re still going to trial not knowing what the full story is.”

The issue that the committee took on has roiled courthouses across the country for generations: How much of a police file should be shared with a defendant? Defendants want everything, in the interests of a level playing field at trial. But victims and witnesses often fear having their contact information shared with the person who allegedly traumatized them, in turn causing police and prosecutors concern about witness intimidation or even a refusal to report crime.

Nationally, the rules vary widely on how much information prosecutors must share with defendants, in part because there is no constitutional requirement to share anything. After the wrongful arrests of Duke University lacrosse players who were charged with rape, North Carolina changed its rules to open its prosecutors’ files completely. Supreme Court rulings, in particular Brady v. Maryland, have required prosecutors to share information that might show a defendant’s innocence or lessen a prison sentence, but defense lawyers dislike leaving the discretion to prosecutors to decide what evidence to reveal.

Virginia’s prosecutors officially opposed the rule changes, both for the added administrative duties and for the possible impact on victims and witnesses, although many said they already give defense lawyers far more than the current rules require. The prosecutors also welcomed some of the proposed rule changes that would have forced defense attorneys to hand over defense witness information, which prosecutors currently don’t get prior to trial.

“Prosecutors have two goals,” said Fairfax Commonwealth’s Attorney Raymond F. Morrogh: “Justice and the truth. You’ve got to make sure the defendant gets a fair trial. I encourage prosecutors to disclose just about everything, though there needs to be some balance in protecting the rights of victims and the public.” Morrogh noted that the attorney for former Fairfax County police officer Adam Torres, charged with murder in the shooting of an unarmed Springfield man, asked for a trial postponement last month because of the volume of material he received from the Fairfax prosecutor.

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.

In civil lawsuits, with disputes over money or property, both sides must turn over virtually everything to the opponent and sit for pretrial depositions. “But when a life is on the line, you’re not entitled to everything,” Ramseur noted. “It’s really shameful.”

After Horne and the 30-member committee sorted themselves into study groups based on various aspects of criminal discovery, the committee issued a revised set of rules for both sides in criminal cases. Police reports and witness statements, now specifically excluded from discovery by the defense, would be provided on request. Both sides would provide witness lists to the other, where now there is no list requirement. And both sides would provide summaries of their expert witnesses’ testimony, as is done in civil cases.

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.”

After the special committee filed its report, the 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.

“It is apparent that the proposals are the result of ‘trade-offs’ in the negotiations between interest groups,” Lemons said. “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.” He said the court’s order was careful to say “not ‘adopted’ ” rather than “rejected,” and “perhaps a more incremental approach to the subject would be better received.”

Fredericksburg Commonwealth’s Attorney La Bravia Jenkins, president of the state prosecutors’ association, said she was “very pleased” that the court had not adopted the rule changes. The new rules “would really have disadvantaged the Commonwealth. The most important thing was not [frightening] victims. Victims want to be assured they have some security,” and bar rules state that a defense attorney’s file is legally the property of the defendant, not the lawyer.

Ramseur and David Johnson, head of Virginia’s public defender system, both said they had worked on cases in other states where pretrial discovery was voluminous. “In Virginia, they don’t have to tell you who the witnesses are,” Johnson said. “It’s a different universe.”

“Justice is fairer and more accurate,” University of Richmond law professor John Douglass said, “when both parties are better informed before trial.” A member of the special committee, he said “there was a pretty broad consensus that Virginia’s rules of discovery were generally more restrictive than most rules in most other states.”

Prosecutors in Northern Virginia said they recognized the potential for abuse of the rules. Alexandria Commonwealth’s Attorney Bryan Porter said “we gave every single page we had to the defense” in the recent triple murder trial of Charles Severance. “If the entire process is supposed to be a search for the truth, let’s get it all out there.”

Tom Jackman is a native of Northern Virginia and has been covering the region for The Post since 1998.

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