Other Issues & Links
For in-depth information about these and many more of Justice Forward Virginia’s justice reform priorities, read our “2019-20 Justice Reform To-Do List,” which can be found here.
Ex Parte Requests for Assistance
“One-Size-Fits-All” Robbery Punishment
Unreliable Informant Testimony
Overcharging in White Collar Cases
Expungement Limited to Acquittals/Dismissals
Ex Parte Requests for Evidence and Expert Funding
Scientific advancements over the past several decades have led to dramatic changes in the way courts determine guilt or innocence—not to mention the way Hollywood depicts the business of criminal investigation and prosecution. Prosecutors like to refer to “The CSI Effect”: an expectation from jurors that criminal convictions should be backed by things like DNA, forensic computer analysis, cell-site location information, testimony from psychologists or medical doctors, and the like.
With an increased emphasis on evidence that is forensic, scientific or medical in nature, defendants must also increasingly rely on experts to help them at trial. Experts are expensive, though, and without help from the government, poor defendants would be unable to access the expert assistance they need to defend themselves in court.
This is where the problem lies. Because in order to receive money to hire experts, an indigent defendant must ask for funding in open court, and tell the court and prosecutor why they need it. Essentially this requires the defendant to tell the court how he is preparing for trial and which issues will be important to his defense, and in doing so, to broadcast defense strategy to the government. It’s akin to a football team stealing its opponent’s playbook.
The same problems arise when defendants (both indigent and otherwise) need the benefit of court process—subpoena power—in order to obtain documents from a third party. Except in death penalty cases, Virginia defendants can’t issue what are called “ex parte subpoenas duces tecum”—subpoenas for documents that can be issued without notice to the prosecutor. If a Virginia defendant requests a subpoena for documents, the prosecutor will know about it. As with requests for expert funding, this provides the prosecutor insight into how the defendant is investigating the allegations, and what his defense might be at trial. It should be noted that the government is rarely impacted by these same requirements. Police and prosecutors are typically able to obtain documents without relying on court-issued subpoenas.
Changing the law to permit “ex parte” requests for expert funds and subpoenas for evidence could make a major difference in protecting defendants’ rights to prepare a defense confidentially.
As in many states, the past few decades of tough-on-crime politics has resulted in mandatory minimums for all manner of offenses, from assault on a law enforcement officer (even a push with no injury results in a mandatory minimum 6 months in jail), to drug dealing (a third conviction for dealing cocaine entails a mandatory minimum 10 years imprisonment) to sex crimes (a wide variety of sex crimes against children now carry mandatory life in prison, without the possibility of parole). Mandatory minimums “are cruel and ineffective.” Mandatory minimums don’t make communities safer. All they do is take discretion out of the hands of judges and juries, and give it to prosecutors, resulting in immense leverage to coerce guilty pleas, including from persons with legitimate claims of innocence. As to those who are in fact guilty, mandatory minimums uniformly result in harsher punishment, lengthier sentences, and mandated prison terms for persons who have the strongest claims for leniency. Although politically unpopular, solving the problem of mass incarceration in Virginia will undoubtedly require addressing the overabundance of mandatory minimums.
Degrees of Robbery
In Virginia, all robberies are punishable by 5 years to life in prison. This is true no matter how serious or minor the allegations: whether it involved an armed robbery that truly endangered the victims’ lives, or a simple act of bullying, such as where one teenager threatens to beat up another if he doesn’t give him his shoes. The former example is rightfully considered one of the most serious offenses an individual can commit. The latter arguably shouldn’t even be dealt with by criminal courts.
Why the one-size-fits-all approach to a crime that spans such a wide range of behavior? It may owe in part to the appellate courts, which have expanded the definition of robbery over time to encompass more and more acts. Combine that with the legislature’s failure to account for the evolving definition of the crime, and you end up with a punishment scheme that is grossly disproportionate to many of the robberies that are committed.
The potential for unjust outcomes as a result of this one-size-fits-all approach cannot be overstated. First, if a person charged with robbery proceeds to a jury trial and is convicted, jury sentencing laws require the jurors to impose the minimum 5 years in prison, whether they want to or not, and even in circumstances where a judge might not incarcerate the defendant at all. Although a judge can later suspend that jury recommendation, there’s a prevailing belief among most judges that jury sentences should not be disturbed. Second, arguably the most common type of “robbery” that occurs is bullying. Although many schools, police and prosecutors sometimes use their discretion to forgo robbery charges against young people accused of bullying, many don’t. And when they don’t, a young person is suddenly faced with a host of severe consequences: a felony conviction, a felony record for life, and a lengthy prison sentence, just to name a few.
As many other states have, Virginia should establish degrees of robbery that reflect the seriousness of the crime committed.
Unreliable Informant Testimony
“[T]he use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.” On Lee v. United States, 343 U.S. 747, 757 (1952). Testimony by informants and other witnesses who testify for benefit—colloquially known as “snitches”—is by far the most common source of false criminal convictions in the United States; a fact that exposes a deep structural flaw in the criminal justice system, easily exploited by those acting on self-interest, one for which due process has yet to find a reliable countermeasure. The Innocence Project has reported that in 15% of all wrongful convictions overturned by DNA testing, an informant or similar witness testified at trial. Seehttp://www.themip.org/index.php /snitch-testimony. A comprehensive historical study of 350 erroneous convictions concluded that one-third of them were due to “perjury by prosecution witnesses”—twice as many as the next leading source, erroneous eyewitness identification.
Informant testimony is likewise the most common source of false convictions in Virginia. Consider the case of Michael Hash:
“The case of Michael Hash illustrates another way jailhouse snitch testimony can be used for impure ends: in Hash’s case, law enforcement allegedly used a known jailhouse snitch as a de facto police agent in order to attain a conviction. Hash was just 15 when his 74-year-old mail carrier Thelma Scroggins was shot to death in 1996. A new sheriff reopened the cold case four years later and the then 19-year-old Hash found himself charged with murder, despite limited evidence. While incarcerated pre-trial, Hash was moved from the local jail in Culpeper, Virginia to Albemarle Charlottesville Regional Jail specifically to be housed with noted jailhouse snitch Paul Carter. Carter, who was being housed on federal drug charges, has testified roughly 20 times – so it was little surprise that he would later testify against Hash. At trial, Carter said prosecutors had not promised him any lenience for his testimony – yet he was released shortly after the Hash trial. Last year, Michael Hash was released from prison after 12 years when his conviction was overturned . . . [and] has since filed a federal civil lawsuit . . . .
The lawsuit maintains that Paul Carter “made himself available to anybody and everybody in the enforcement community when he felt he had some information that was helpful.” While he was awaiting sentence himself, Carter allegedly told his lawyer “I’m not still involve[d] with this crime life. I just find things out to cut my time down.” Hash’s attorneys say law enforcement officials met with Carter beforehand to brief him on the case against Hash before setting the two up to meet in jail.”
The reason false informant testimony remains so pervasive is because of the reticence of courts to implement available, effective measures to prevent it. Instead, courts continue to rely on traditional safeguards that are almost entirely ineffectual, particularly in high-stakes, high-profile cases involving experienced informants. Primarily, those safeguards consist of the defendant’s right of confrontation and the government’s obligation to adduce only truthful, reliable testimony. Neither of these safeguards achieve their intended objectives, however, highlighting the need for other appropriate, available relief.
What can be done by the legislature? First, the legislature could require informant testimony to be corroborated by other evidence in order to be admissible at trial. Second, it could mandate that in all cases where the prosecutor intends to elicit informant testimony, the court must conduct a “reliability hearing” to assess whether the informant is telling the truth. And third, it could require that juries be instructed as to the significant problems with the reliability of informants.