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Virginia is one of only six states in which a jury, after finding a defendant guilty at a trial for a noncapital felony, may also determine the sentence. And Virginia is one of only two states where the defendant can be required to face a trial by jury at the prosecution’s insistence. Taken together, these two factors work to the great detriment of Virginia criminal defendants. By simply demanding a trial by jury, prosecutors can effectively force defendants to plead guilty. Article I, Section 8 of the Virginia Constitution sets forth the right of the accused to be tried by a jury of his vicinage (that is, peers) in a criminal prosecution. However, the Virginia Constitution further provides that, should the accused enter a plea of not guilty, he may only waive his right to a trial by jury with the concurrence of the prosecution and the court. Meaning, although a criminal defendant has a constitutional right to a jury trial in Virginia, he does not have a constitutional right not to have a jury trial. 2 PERCENT TO TRIAL Making the situation worse is jury sentencing. That practice, in noncapital felony cases, has had a significant impact on reducing jury trials. According to the 2003 Annual Report of the Virginia Criminal Sentencing Commission, the 1994 law revamping jury sentencing has had a drastic effect. Now, less than 2 percent of noncapital felonies go to trial. By statute, a jury sentence is merely a recommendation to the court. The Virginia code provides that a judge may suspend a jury’s judgment in whole or in part, after consideration of a pre-sentence report. In reality, that authority is rarely exercised. Virginia’s Criminal Sentencing Commission statistics reveal that judges modified jury sentences in less than one-fourth of the fiscal year 2003 cases in which juries found the defendant guilty. Before 1994, the use of jury sentencing was a double-edged sword. Virginia prosecutors demanded jury trials in cases involving drug distribution and violent crimes, where juries traditionally meted out sentences substantially more severe than those typically imposed by judges sitting without a jury. But in other kinds of charges, the defendant had the advantage. Defense lawyers urged their clients to demand jury trials for property crimes, in which jurors, not knowing a defendant’s prior record, would recommend sentences of a few days in jail or merely a fine. These property-crime jury trials, in which the defendant presented no evidence, were dubbed “slow pleas” by the defense bar. The General Assembly brought an end to the practice in 1994 with the enactment of its “Truth in Sentencing” legislation. In addition to abolishing parole, the legislation established a procedure in which evidence of the defendant’s prior convictions, as well as any mitigating evidence, can be presented for jury sentencing. Now prosecutors can obtain heavy sentences on property crimes involving defendants with prior records which far exceed the sentencing range set forth in the guidelines. Even a first offender is likely to receive a 30- to 90-day sentence from a jury — which is likely to be imposed without parole — when the guidelines call for probation. In essence, the legislation changed the former double-edged sword of jury sentencing into a single-edged machete wielded by Virginia prosecutors. Under current Virginia procedure, after a jury determines guilt, the defendant’s prior record can be proven at the sentencing phase only by the introduction of “certified, attested or exemplified copies of the record of conviction, including adult convictions and juvenile convictions and adjudications of delinquency under the laws of any state, the District of Columbia, the United States or its territories.” This documentation can include a probation violation, even though that is not a criminal conviction. Furthermore, the conviction record may be a certified copy of a docket entry, rather than the final sentencing order itself. In order to introduce this evidence, the prosecution must provide notice to the defendant of its intent to introduce prior criminal convictions at least 14 days prior to trial. The notice requirement has been held to be merely procedural. That means failure to strictly comply with the provisions of the code is not fatal to the commonwealth’s ability to present such evidence, as long as there is sufficient notice to alert defense counsel to what convictions are intended to be used. The defendant may then present evidence in mitigation, to which the commonwealth can present rebuttal evidence, including that of unadjudicated conduct. The Virginia Court of Appeals has held that defendants in noncapital cases have no right to inform potential jurors during voir dire about the specific range of punishment. Jurors have been heard to audibly gasp when they first hear that they must impose a minimum five-year sentence on a charge such as a burglary of a residence in the nighttime, when the resident was not even home at the time. Given the danger of jury sentencing, defendants in just a few situations decide to go to trial. Sometimes defendants take the risk of jury trial and sentencing to preserve legal issues on appeal. Also, juveniles who have been certified as adults in noncapital felony cases often decide to proceed to trial by jury; Virginia code exempts their cases from jury sentencing because of the judge’s power to sentence them to juvenile programs rather than prison upon conviction. The remaining few cases that go to trial are those in which presenting evidence to a jury might actually be to a defendant’s advantage for sentencing. This category includes cases in which a defendant’s prior record would call for a substantial period of incarceration under the discretionary sentencing guidelines, but mitigating factors could convince a jury to recommend a more lenient sentence. NOTHING TO LOSE This “nothing to lose” approach to jury sentencing was the philosophy of one of my clients, who was charged with possession of heroin, possession of paraphernalia, and driving under the influence of drugs in Arlington County Circuit Court. On my advice, my client declined to enter a plea when arraigned, forcing the court to enter a plea of not guilty on his behalf and to proceed with trial. Upon a finding of guilt, the assistant commonwealth’s attorney duly introduced certified copies of the defendant’s nine prior drug-related offenses, as well as assorted other misdemeanors. In mitigation, the defense presented evidence regarding the defendant’s current jail drug-rehabilitation program to which he had been sentenced on a violation of probation stemming from the instant offense. It was explained to the jury that any sentence in excess of four months, combined with the sentence for his violation of probation, would subject the defendant to “state time,” sending him down to the Department of Corrections, and rendering him ineligible to complete the program at the Arlington Adult Detention Center. The jury sentenced the defendant to a $2,500 fine on the felony possession of heroin, and to a total of 90 days on the two misdemeanors. He is one of the few defendants who did better by going to trial than he might have done by negotiating a plea bargain. The other type of case which lends itself, from a defense point of view, to jury sentencing is that in which the accused has no prior record and is clearly a victim of circumstances. In one Fairfax County Circuit Court case, I represented a defendant who had been given unofficial custody of her niece by a sister who remained in Central America. Unable to register the child in Fairfax County schools because of the child’s lack of documentation, the aunt kept the child in her apartment while she went to work cleaning hotel rooms. The child left the apartment and was found by police under the building’s exterior stairs. The aunt was charged with abduction, for locking the child into the apartment, and with contributing to the delinquency of a minor, for allowing the child not to attend school. The jury acquitted the defendant of abduction, but found her guilty of the contributing charge. In assessing a $1 fine, the jurors filled the verdict form with a diatribe against the Fairfax County school system for not allowing a legal resident to register the child in school. These examples, however, are rare. Even with the ability to hear some mitigating evidence, jurors are not in a position to know how other defendants in similar circumstances — or even co-defendants — fare. Consequently, there continues to be a vast disparity between those who hazard trial by jury and those who are sentenced by the court after a plea or a bench trial. Virginia is not a jurisdiction in which a defendant willingly elects a trial by jury. Unfortunately, in most cases, a defendant’s only alternative is to plead guilty. Corinne J. Magee is a partner of the Magee Law Firm in McLean, Va. She also chairs the Criminal Practice Section of the Fairfax Bar Association. The opinions expressed here are hers alone. She can be reached at [email protected].

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