Fairfax won’t use prosecutors in most misdemeanors

Fairfax County prosecutors stopped being involved in many misdemeanor cases last month.

The reason: The county’s newly implemented body-worn camera program for police officers.

The body cams create a high volume of footage and an overwhelming caseload prevented prosecutors from giving cases “the attention they deserve” and are ethically obligated to give, said Steve Descano, who became Fairfax commonwealth’s attorney in January.

“This office must deploy its limited resources with the objective of prosecuting the largest number of cases possible while maintaining the ability to give each case the individual time and attention it deserves and our community expects,” said Descano.

According to the Virginia Code, prosecutors are only statutorily required to pursue felony cases in circuit court and appeals to circuit court from the juvenile and domestic relations court; other misdemeanors, such as traffic violations, were ancillary cases add-ons Fairfax County prosecutors continued to take on.

“It really just comes down to a question of resources,” Descano said, noting his office is currently staffed by nine staff members and 33 attorneys.  “COVID-19 slowed things down to prepare for the forthcoming implementation of body cameras and provided the necessary opportunity for us to take a look at what we could handle,” he said.

According to Virginia law, prosecutors are ethically required to review all evidence pertaining to a case — but that gets a little tricky when body-worn cameras come into play. For example, if four police officers respond to a call about domestic violence and stay on the scene for two hours, that’s already eight hours of footage a prosecutor must review for just one case.

As a result, there is a concern that prosecutors are not reviewing footage as thoroughly and “ethically” as they are required to do.

“This office had a tendency to only really review evidence for felony cases, and I think that goes back to the issue of staffing,” Descano said. “We’re only staffed to do felony cases, but it was an accepted practice here that the misdemeanor and traffic cases got short-tripped.”

Therefore, as of July 20, the Fairfax commonwealth’s attorney’s office is only pursuing felony cases and limited misdemeanor cases, including domestic violence, traffic fatalities, sexual battery and “any case of significance or public importance as determined by the Commonwealth’s Attorney.”

Descano hopes this lightened caseload capacity will every case will be given “the justice they deserve.”

Of course, no major change comes without criticism. Fairfax defense attorney David Albo said he has already noticed a few problems the new system creates for individuals charged with reckless driving.

“If there’s no prosecutor for reckless driving and lower-level things… That means the police officer ends up being both the fact witness and essentially the prosecutor,” Albo said.

While defending a reckless driving client last week, Albo said he faced a “practical issue” in that he was unable to talk to a prosecutor prior to the hearing.

“Without a prosecutor, the only way to find out what’s going on is to plead ‘not guilty,’” Albo said. “I’m just wondering, without a way to get information prior to appearing before the judge, is everything going to go to trial now?

However, Albo noted that other jurisdictions, including Stafford County, have held a similar structure to Descano’s new model for years.

“In the larger jurisdictions, I think people take for granted the idea that prosecutors are in every case because that’s the perception,” said Arlington Deputy Commonwealth’s Attorney Brandon Sloane, who previously worked in Fairfax. “But when you go out into further parts of the commonwealth, you see that more and more counties may only do felonies and occasionally DWIs.”

Importantly, Fairfax County prosecutors will continue processing a considerable number of backlogged cases that are due to COVID-19 that they otherwise would not handle going forward.

“So the effects of [the new caseload capacity] won’t really be felt until October or November,” Descano said.

Descano looked at other jurisdictions for inspiration while evaluating how to restructure the county’s caseload capacity in anticipation for the body-worn camera program. He found that Virginia Beach is the “touchstone” in how a prosecutor’s office adjusted staffing for body-worn cameras.

Virginia Beach Commonwealth’s Attorney Colin Stolle said that when the city began inquiring about body-worn cameras in 2015, he informed them that the real issue came down to an increased workload for prosecutors.

“If you increase the amount of time it takes to prepare a case, something’s got to give,” Stolle said. “You either need more staff, or you need to reduce the number of cases that you take because your ethical responsibilities do not change just because your workload increases.”

Though Virginia Beach prosecutors already didn’t appear in traffic cases and “most misdemeanors,” the city still had more than 19,500 criminal charges last year alone, Stolle said.

“Looking at that… It wasn’t possible to back out of additional work, so I needed additional personnel,” Stolle said, noting the city therefore provided funds for seven more attorneys and additional support staff to “handle the body cameras.”

Fairfax is not the only county that has made recent adjustments for its prosecutors. In April, Arlington Commonwealth’s Attorney Parisa Dehghani-Tafti transitioned her office into a “vertical prosecution model” in which one prosecutor is assigned to individual cases from start to finish.

“We decided that we needed to restructure the office and rethink our role in cases; in order to have the most impact on public safety and to be as responsive as possible to victims, witnesses, officers and other stakeholders, including the community,” Dehghani-Tafti said.

“Everyone we are interacting with, broadly speaking, appreciates knowing exactly who to talk to,” Sloane added.

Descano emphasized that the current caseload capacity is not permanent; it will continue to be updated as needed “depending on resources that become available,” including attorneys and paralegals.

“Ultimately, I was elected to reform this system. This is what reform looks like — it looks like taking a critical look, doing a top to bottom review, and leading with our values,” Descano said. “We owe it to the community to give each case the attention it deserves.”