THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Wednesday, July 6, 1994 TAG: 9407060375
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY LAURA LAFAY, STAFF WRITER
LENGTH: Long : 111 lines
Beginning this month, Virginia jurors will be told about the criminal records of convicted defendants before they decide how to punish them.
Prosecutors hope the statute - part of Gov. George Allen's get-tough-on-crime package - will cause juries to give harsher sentences to defendants with criminal records. But some defense attorneys believe the law could backfire on the commonwealth and work to the advantage of defendants instead.
Under the provisions of the new ``truth in sentencing'' statute that took effect Friday, all felony jury trials in Virginia will be divided into two parts: a guilt phase and a sentencing phase.Jurors who convict during the guilt phase will then hear evidence relating to how harshly they should punish the defendant before they decide on a sentence.
``I think it's a very good thing,'' said Norfolk Deputy Commonwealth's Attorney Norman Thomas. ``It will give jurors an opportunity to know who they're dealing with. Once they've decided guilt, then they'll have their own chance to gauge what kind of person they are sentencing.''
But the statute also allows defendants to introduce their own evidence - such as evidence of child abuse or drug addiction - in an effort to persuade jurors to sentence them less harshly.
Some defense attorneys predict the statute will cause lengthier and more expensive proceedings, featuring endless parades of state-paid expert defense witnesses.
``Bring on the storm troops,'' said Norfolk defense lawyer Michael F. Fasanaro Jr. ``We're going to have psychiatrists. We're going to have psychologists. We're going to call (to the witness stand) more family members than you can choke a horse with. Everyone. Employers. Any witnesses we can think of . . . They want truth in sentencing? They're going to get it from both sides.''
David P. Baugh, a former federal prosecutor who now practices criminal law in Richmond, thinks the new statute will be a boon for defendants, their attorneys and state-paid experts.
``Psychiatrists and social workers should be licking their chops over this one,'' he said. A 1985 U.S. Supreme Court case dictates that states must pay for expert defense witnesses.
Baugh, a former federal prosecutor in both Texas and Virginia, called the new statute ``stupid'' and ``reactionary.''
``I would say that the people that came up with this in an effort to get tough on crime got stupid on crime,'' he said. ``It actually has more advantages for the defense than it does for the state.
``The difference between prosecutors and defense attorneys is that prosecutors prosecute acts while defense attorneys defend people. Prosecutors try to get the jury to focus on the act itself and forget everything else. They don't want the jury to know that the guy has a mother or a wife or kids.''
According to the statute, defendants may introduce any and all ``relevant, admissible evidence related to punishment.'' Defense lawyers are interpreting that to mean anything and everything.
``Abuse as a child, abuse as an adult, substance abuse, history of mental problems, friends, neighbors, ministers, teachers, employers,'' said Suffolk public defender Tim Miller.
``We represent a segment of society that is largely from a deprived background, and truth in sentencing will allow us to fully develop mitigating evidence and evidence that can show how and why some of our clients commit some of the offenses that they do commit. I'm excited to be able to show that.''
But not all defense lawyers are as thrilled as Miller. Andrew Sacks, a Norfolk lawyer who serves as vice president of the Virginia College of Criminal Defense Attorneys, believes that the new statute deprives defendants of their constitutional right to due process of law, and conflicts with ``the spirit and purpose'' of Virginia's juvenile code.
``My sense is that criminal record information is so inflammatory and so potentially prejudicial that a jury of honest citizens is going to have a difficult time putting that record into the right perspective,'' Sacks said.
``And even if there is other evidence that can be introduced as mitigation be created in a jury's mind. Every trial lawyer knows that the toughest thing to overcome in a trial is explaining someone's prior criminal conviction.
``The other thing that troubles me is that juvenile records are admissible. Juvenile court is very difficult. The purpose of juvenile law is to rehabilitate and give youthful offenders a chance. This defeats the whole purpose of that.''
Sacks said he plans to challenge the new law the first chance he gets. The statute, he predicted, will likely end up before the Virginia Supreme Court.
Prosecutors say the new procedure may cause some defendants with lengthy records to forego jury trials and plead guilty. But, they say, the trials that do take place will last roughly one day longer. The state Department of Criminal Justice Services estimates that Virginia juries convict 1,100 defendants a year.
Virginia jurors are paid $30 a day ($360 for a jury of 12), but there is no way of estimating exactly how much more the new procedure will cost because prosecutors and defense lawyers are reimbursed at different rates all over the state, said Don Harrison, spokesman for the attorney general's office.
Juries technically only recommend sentences in Virginia, but because the state's judges rarely fail to follow jury recommendations, Virginia is considered one of only eight states that have jury sentencing. The seven others - Arkansas, Texas, Kentucky, Mississippi, Missouri, Oklahoma and Tennessee - also conduct two-part felony trials. by CNB