Virginia Lawyers Weekly

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• Defense Attorney says:

  It’s not so much that prosecutors set out to deliberately withhold information from defense counsel, but that they often lack the imagination to see how a piece of information in their hands might be exculpatory. After all, oftentimes they are relying on the police account of what a witness said or did and not upon their own careful review of the file. They often aren’t paying enough attention until the eve of trial to realize that they may have something exculpatory. I’ve had prosecutors laugh in my face at objections for failure to share information which I consider to be vital and potentially exculpatory. But where the problem really lies isn’t merely on the bizarre rule that the person who is one’s opponent decides which information is potentially exculpatory to one’s case, but the way the judges bend over backwards to forgive even the obvious game-playing by prosecutors. They’re loathe to think ill of the prosecutors, to accept that the prosecutor may not be as honest or above-board as he/she should be. The most frustrating aspect of all this is the failure of the legislature to establish even a baseline for information to be shared, leaving administration of justice up to the sole discretion of the prosecutors in each jurisdiction. Thus, I can walk into one jurisdiction and have open file discovery from the first day, and in other jurisdictions will be refused permission even to see the police reports before trial. Many times I’ve seen offers of pleas to lesser offenses placed on the table by prosecutors who treat the information which any attorney would require in order to fully inform the client of the case against him as a kind of poker hand to be held close to the chest. The threat, sometimes bluntly made, is if you don’t get your client to plead, then the Commonwealth will proceed on the more serious charges. Limited time offer, they say. Accept it on faith that we’re not lying to you, that we do have a case, or take your chances that we really do have a case.

  There is something seriously wrong with a system which treats information available to defendants as a crap shoot and plea negotiations as a game of chicken or high-stakes poker.

  Posted on 01/05/10 at 4:26 pm
• Another Defense Attorney says:

  If the VSB doesn’t treat prosecutors any differently than defense counsel, why is its investigation of Eileen Addison, Commonwealth’s Attorney for York County, now into its fourth year, especially since the Circuit Court Judge in the Atkins case found that she had engaged in witness tampering and used that fact to commute a death sentence to life? [This is one of the reasons David Baugh quit the Ethics Committee.] Who do they think they’re kidding?

  Posted on 01/07/10 at 1:00 pm

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