Criminal – No dismissal of indictment despite Brady violation

Although the Commonwealth failed to produce Brady material, the defendant was not entitled to dismissal of the indictment. Dismissal is appropriate only when the Brady violation causes irreparable prejudice to the defendant or the record supports a finding of egregious and pervasive prosecutorial misconduct. Neither scenario is present here.

Background

A jury found Rayshawn Scott guilty of seven charges related to a shooting.
Upon learning that the Commonwealth failed to produce Brady material, Scott filed a post-conviction motion asking the court to either dismiss his case with prejudice or grant him a new trial with a special prosecutor. At retrial, a jury once again found Scott guilty of all charges.

Brady

Scott argues that the trial court abused its discretion by refusing to dismiss the charges with prejudice. While this court finds Senior Assistant Commonwealth’s Attorney Joseph Lee’s failure to disclose impeachment evidence deeply troubling, it disagrees with Scott.

Dismissal is appropriate only when the Brady violation causes irreparable prejudice to the defendant, or the record supports a finding of egregious and pervasive prosecutorial misconduct. As neither scenario is present here, the trial court acted within its discretion by refusing dismissal.
Because Brady violations involve the constitutional disclosure obligations of the prosecution — not the guilt or innocence of the defendant — the proper remedy for a proven violation includes a continuance, a mistrial, or some lesser remedy. In fact, no Virginia appellate court has ever dismissed an indictment when the prosecutor failed to disclose Brady material.

The federal courts have found that dismissal is appropriate only as a last resort, where no other remedy would cure prejudice against a defendant. Here, the Brady material was not lost or destroyed. Rather, Shaquille testified at the second trial, and defense counsel cross examined him about his agreement with the Commonwealth and the disposition of his previous drug charges.

A Brady remedy is not a tool used to punish the prosecution; it is one that safeguards the threshold requirements of the Due Process Clause. Because Scott has not demonstrated a pattern of entrenched and pervasive prosecutorial misconduct, this is not a case warranting dismissal.

Special prosecutor

Scott contends that the trial court abused its discretion when it failed to disqualify the Petersburg Commonwealth’s Attorney’s Office and appoint a special prosecutor. This is wrong for two reasons. First, Scott presented no evidence that Lee’s suppression of impeachment evidence stemmed from personal animus against the defendant. Second, even if Lee had the type of adversarial conflict alleged, one attorney’s conflict does not necessarily disqualify an entire prosecutor’s office.

Sufficiency

Scott argues that the trial court erred when it denied his motion to strike because the Commonwealth failed to present direct evidence that Scott committed an unlawful shooting. This argument misses the mark. Although no one witnessed Scott shoot Parham, the Commonwealth presented sufficient evidence of the shooter’s identity to survive a motion to strike.

Affirmed.

Scott v. Commonwealth, Case No. 1417-24-2, June 2, 2026. CAV (Ortiz). From the Circuit Court of the City of Petersburg (Teefey Jr.). Sante J. Piracci (Sante J. Piracci P.C., on brief), for appellant. William K. Hamilton, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-225. 16 pp.

Full-Text Opinion
VLW 026-7-225