‘Still an ambush state’: The move toward discovery reform is going slowly in Virginia

ROANOKE — Assistant U.S. Attorney Heather Carlton and Danville Commonwealth’s Attorney Michael Newman spoke quietly but intensely at the prosecution table.

The two of them were part of a team tasked with prosecuting a federal trial that stemmed from gang activity in Danville. A critical error from Newman’s office had just opened the door for defense attorneys, and it was clear they knew everything in the case was about to change.

Newman’s office, as he later admitted in writing to the federal judge, had not transcribed numerous tapes of state grand jury testimony, and had thus not supplied defense attorneys with the transcripts.

This failure to provide discovery — that is, documents and files that prosecutors must give defense attorneys to assist with their case — ended up flipping the case on its head. Six of the eight co-defendants in the case were facing life sentences, but five of those six reached plea agreements that will result in a maximum of 15 years in prison.

Aaron Cook, one of the defense attorneys in the case, said in a recent interview that Newman’s withholding of information didn’t seem to be malicious. More likely, Cook said, Newman was used to not having to supply absolutely everything to defense attorneys because in state court, Virginia does not require prosecutors to share much of anything.

Virginia’s laws regarding discovery are well behind most states. Virginia is one of 13 states to not have some kind of open discovery law — that is, a law that requires prosecutors to give most or everything they have to defendants to allow them to build a case — and it’s harming people on both sides of the law.

“It’s from an era where criminal defendants were given a trial by ambush,” Cook said of Virginia’s discovery laws. “In recent years, most states have realized that to achieve justice it is preferable that criminal defendants and their attorneys have access to as much information about the case as possible. But Virginia’s still an ambush state.”

Just this past July, new discovery regulations from the Virginia Supreme Court were supposed to go into effect, but the Supreme Court has pushed that date back to next year. In the meantime, defendants and their attorneys continue to be in the dark when it comes to trial preparation.

‘Better than we had before’

For those in Virginia’s courtrooms and in the halls of the Capitol, this is not a new issue.

The only requirement for attorneys in state court is the constitutional mandate to provide any evidence that might be exculpatory for defendants — that is, evidence that shows they are innocent or shows that there’s a good chance someone else did it.

Attorneys on both sides of the law have pushed for changes, Virginia Association of Commonwealth’s Attorneys Executive Director Michael Doucette said.

Doucette, the former Lynchburg commonwealth’s attorney, has been on two task forces — which have included prosecutors, defense attorneys and judges — that delve specifically into how Virginia should adjust its discovery laws.

One of those task forces, known colloquially as the Horne Commission, sent the Supreme Court a list of recommendations for discovery reform, only to have the Supreme Court decline to take any action in December 2015.

Sen. Bill Stanley, R-Franklin, a defense attorney, then introduced a bill trying to set new discovery rules, but it didn’t make it through the House. As that legislation died, another task force was formed to further examine the issue.

In 2018, the Supreme Court accepted recommendations from that task force. The regulations, which were set to go into effect in July 2019, would allow defense attorneys to review police reports and witness statements, among other pieces of information. Sen. Scott Surovell, D-Fairfax, an attorney and avid proponent of open discovery laws, said the proposed regulations were a step in the right direction.

“They were a lot better than we had before,” Surovell said.

But earlier this year, prosecutors around the state raised concerns about the new regulations, and particularly how police body camera footage was going to factor in. Prosecutors would need more staff to prepare body camera footage to share, and defense attorneys would need more staff to review the hours of footage prosecutors would share, Doucette explained.

Doucette said he and others went to delegates during this past legislative session and said they would need to include more money in the 2020 budget for prosecutors to have staff be able to provide the increased amount of discovery to defense attorneys.

Chief Justice Donald Lemons concurred, and issued a statement earlier this year pushing the new discovery regulations back to 2020.

Gov. Ralph Northam unveiled his budget earlier this week, including more funding for both commonwealth’s attorneys and public defenders. The budget supplies enough funding for 29 additional employees; 19 new assistant commonwealth’s attorneys and 10 support staff in commonwealth’s attorneys’ offices.

The budget also includes funding for 59 additional public defenders across the state in addition to partially funding a brand-new public defender office (with 35 public defenders and support staff) in Prince William County.

Doucette said he was pleased that the number is at least moving in a positive direction, despite the fact that the proposed funding isn’t where they wanted it to be and that public defenders got more of a boost than commonwealth’s attorneys’ offices did.

Advocating for more

Joe Luppino-Esposito loves side-by-side comparisons. Luppino-Esposito, the director of the Rule of Law Initiative at the Virginia-based Due Process Institute, especially likes to compare Virginia’s discovery laws with that of its neighbor, North Carolina.

Virginia’s requirements are limited just to exculpatory discovery, while North Carolina has open discovery laws that require prosecutors to share just about everything they have with defense attorneys. North Carolina’s criminal justice system runs more smoothly as a result, Luppino-Esposito said, and Virginia could learn from its neighbor.

“Every state thinks they’re very unique, you know, ‘Hey, we’re a commonwealth,’ but there are some things that are universal,” Luppino-Esposito said. “I think this is one of them where they can borrow quite a bit from the North Carolina system and be very effective and very successful.”

A study conducted in 2014 and 2015 backs up Luppino-Esposito’s point. The study, by professors from the SMU School of Law and George Mason University, surveyed attorneys  in Virginia and North Carolina about discovery laws. Prosecutors in Virginia expressed two concerns with open discovery: that witnesses would be in danger if their names, statements and personal information were provided to the defense prior to trial, and that prosecutors’ offices would be overworked if they had to share all their discovery.

North Carolina attorneys in the survey said that with specific regulations in place to protect witnesses, the system actually works quite well.

“Open-ended responses by North Carolina prosecutors and defense attorneys likewise indicate that liberal pre-plea discovery does not impose undue logistical burdens on prosecutors or undue hardships on witnesses,” according to the study.

While open discovery laws are the eventual goal for proponents such as Luppino-Esposito and Surovell, they hope to at least get the new regulations from the Supreme Court into effect. Luppino-Esposito said the ability for defendants to see discovery prior to trial makes a huge difference in how cases go.

A certain piece of discovery — no matter how insignificant it might seem to prosecutors — could be the difference between a defendant going to trial or taking a plea deal.

“This would affect so many other pieces of that process,” Luppino-Esposito said. “Those pretrial pieces, whether or not you’re going to go to trial is sometimes the whole ballgame. …(Discovery)’s a critical lynchpin into the whole process.”

Doucette said he thinks that any change that happens should come from courts and not from the General Assembly. The task forces he was on took a full year and hours-long meetings to form recommendations for the Supreme Court. On the other hand, he’s seen delegates discuss important topics in a matter of minutes before voting on it.

“I would not want to see it go through the General Assembly,” Doucette said. “Historically Virginia rules are promulgated by the Supreme Court. This, to me, would set a very unwieldy sentiment as far as the general assembly being involved in judicial rules.”