A Jury Trial in Virginia

Client charged as felon in possession of a firearm. Actually, he is supposed to have been adjudicated a juvenile delinquent for an action which would have been a felony if he had been convicted as an adult and been in possession of a firearm before his 29th birthday. Here's the statute.

The judge has one 30+ minute recess before trial so that the prosecutor can get a nonsubpoenaed witness for an in limine hearing.

The judge rules that I cannot assert an affirmative defense that a government agent or body has told my client that he can possess a firearm after the state trooper in charge of the records testifies that when my client filled out the form to buy a firearm and the store clerk checked with the state police "there was something wrong with the program" so that it stated he was eligible to possess a firearm.

The judge allows the prosecutor to ask a question about religious belief in voir dire.

After opening arguments the prosecutor calls one witness then seeks, and gets, another recess. The judge grants this one as well and the prosecutor - now advised of my entire defense strategy (that the paperwork shows my client was not convicted) - goes and gets 4 more unsubpoenaed witnesses. This recess lasts much longer than the other recess but I'll conservatively say 30+ minutes.

The first unsubpoenaed witness (the excuse for the recess) testifies in the case at chief and provides absolutely no non-redundant evidence.

Prosecution enters the record of the "conviction." The papers have a petition which alleges assault and battery of a police officer (bumping him with his chest), the petition notes a guilty plea and a finding of guilt. SIX MONTHS LATER, the Disposition Order states that Client's charge was disposed of as an A&B; nothing in it indicates the charges was disposed of as a felony. Judges clearly have the power to reduce felonies.

I call my client as a witness. When I ask him if he was convicted the prosecutor objects, judge sustains. I ask my client if he thought he was convicted. Prosecutor objects, judge sustains. We go up and talk at the bench and the prosecutor tells the judge if my client testifies one of his unsubpoenaed probation officer witnesses will be called in rebuttal. Judge says he will allow on that basis but I don't have a clue what that unsubpoenaed probation officer is going to say so I pull my client off the stand.

I introduce to final dispositions sent to the jail about my client's sentence from the juvenile court. The first has two misdemeanors and a felony. The second, sent two days later with "AMENDED" written on the side, shows the first two misdemeanors again but the felony is not shown. Judge won't allow me to introduce the statutes which show that the jail must take a DNA sample (and thus must be notified if the court finds someone guilty of a felony).

After lunch we come back and the prosecutor goes to call his 3 other non-subpoenaed witnesses "in rebuttal." I object and ask what it's in rebuttal to. At first the reason offered by the prosecutor and adopted by the judge is that the rebuttal is to counter my opening argument. After I point out that that's not introduced evidence and should be countered in closing argument the reasoning for allowing the rebuttal morphed into countering the two pieces of paper I entered into evidence.

The 3 witnesses then come to the stand and don't testify to anything involving the two sheets of paper. The first unsubpoenaed witness testifies that he was the prosecutor on the first date in the juvenile court. The second unsubpoenaed witness testifies that she was the probation officer on the first date in juvenile court. Neither can testify to anything that happened on the disposition date. The third unsubpoenaed witness is a probation supervisor who never saw the inside of the courtroom; over objection he is allowed to testify that he saw paperwork which did not indicate a change. On cross I show him the actual disposition order and ask him what A&B means; he dodges and then says he hadn't seen the actual order.

The jury leaves and we argue over instructions. The judge refuses to instruct the jury as to the requirement that jails take a DNA sample of someone because "no testimony has been offered as to the taking or not of DNA samples." I point out that this is not the purpose of the instruction - the purpose is that the jail must take the sample and therefore must be notified and the AMENDED notification does not have the felony on it. Over ruled.

Jury comes back, we make arguments, jury goes out, and jury comes back. Conviction.

While jury was out we argued over sentencing instructions. Prosecutor offered the basic "He is convicted; You MUST give him 5 years" instruction. I countered with an instruction based upon the plain reading of the statute. At the top the statute states that the statute applies to those (1) convicted and those (2) adjudicated who are in possession of a firearm. In the punishment section it states that this is a class 6 felony (0-5 years) and there are mandatory punishments for those convicted. My client was not convicted - he was adjudicated. I offer an instruction for a punishment from 0-5 years. Prosecutor points to a case which says that judge must give the 5 year mandatory instruction. Judge goes, looks up case, and brings it back. Our court of appeals ignored the plain language of the statute, the canons of statutory construction, and legislated into existence the same punishment for adjudications as there is for convictions. I almost threw the opinion on the ground after I read the pertinent portion.

Jury goes back in for sentencing. Jury refuses the mandatory sentence of 5 years. Judge calls jurors out and reads them the riot act. Jury goes back and comes out with the 5 year sentence.

I go through the motions and finally leave the courthouse in disgust.