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Mitch Wells
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Criminal Law, DUI, Traffic Law Reckless Driving Speeding Ticket Defense Attorney
Criminal Law, DUI, Traffic Law Reckless Driving Speeding Ticket Defense Attorney

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SUPREME COURT OF VIRGINIA REJECTS CRIMINAL DISCOVERY CHANGE

The Supreme Court of Virginia has declined to adopt recommendations of a study committee on criminal discovery rules designed to provide routine disclosure of police information to defense attorneys.
The reform package was supported by defense lawyers and opposed by prosecutors and law enforcement.
The court’s Nov. 13 order on the proposal was succinct: “Having considered the Committee’s report and the public comments submitted in response thereto, the Court declines to adopt the Committee’s recommendations.”
The order ends about two and half years of study and deliberation by the court on proposals to modify Virginia criminal pretrial procedures. Reforms were first proposed in 2004 by a Virginia State Bar task force on indigent defense.
The court invited comments on reform proposals in May 2013 and then appointed a 23-member study committee in November of that year.
When the court’s study panel delivered its recommendations last December, the chair – retired Judge Thomas D. Horne – said the proposals were designed to avoid “trial by ambush.”
“Presenting the truth at trial is not an ambush,” countered Chesapeake Commonwealth’s Attorney Nancy G. Parr, then-president of the Virginia Association of Commonwealth’s Attorneys.
The court released the committee recommendations in March. The court invited additional comments through June 30.
Throughout the study process, comments reflected concerns from law enforcement about witness safety and the balance of pre-trial privileges and procedures. Defense lawyers said current rules hamper defense preparation and perpetuate “trial by surprise.”
Richmond Commonwealth’s Attorney Michael N. Herring, a member of the study committee, was taken aback by the complete rejection of all proposals.
“I am surprised that the court rejected the recommendations in their entirety,” Herring said Sunday. “The proposals were the result of many hours of hard work and thoughtful discussion among a diverse array of contributors.”
“I am bitterly disappointed,” said Douglas A. Ramseur, a state capital defender who also was on the committee.
Ramseur emphasized that the committee proposals reflected a carefully crafted balance between members with opposing viewpoints.
“We all worked really hard to come up with a fair and balanced plan to move Virginia courts forward,” Ramseur said. “Hopefully, this hasn’t closed it,” he added.
Prosecutors had denounced most of the committee proposals.
“Obviously, we are pleased, ” said LaBravia J. Jenkins. The Fredericksburg commonwealth’s attorney is current chair of the VACA.
Lynchburg Commonwealth’s Attorney Michael R. Doucette, a former VACA president, said Friday the committee proposal could have forced judges to spend more time ruling on discovery motions.
“There was a great deal of concern on the part of many prosecutors and law enforcement officials as to how to safeguard the personal information of victims and witnesses. Perhaps the court was concerned that the recommended redaction provisions would be too time consuming for circuit court judges,” Doucette said.
Doucette echoed concerns raised by prosecutors throughout the process that the rules need not be modified to require disclosure of exculpatory evidence when such disclosure already is required by both constitutional law and the court’s Rules of Professional Conduct.
The proposed changes also would have imposed “significant time and financial burdens” on all prosecutors’ offices, Doucette said.
Defense attorneys said they had hoped for some change.
“It leaves us at the mercy of the whims of the prosecutors,” said Lynchburg criminal defense lawyer B. Leigh Drewry Jr.
Drewry said reform was needed because it’s often difficult to discern whether information is exculpatory or not. The same document can work both ways, he said.
“If a jury can see it, why can’t the defense see it before we get into prosecution?” Drewry asked. “There’s no reason for us not to know what the prosecutors know if we are all seeking justice and the truth,” he added.
Richmond criminal defense attorney David P. Baugh expressed surprise that the court simply cast aside the entire package.
“I thought that after setting up the group, somebody was giving serious thought to what’s in the best interest of the law, the best interest of citizens,” Baugh said. “It seems it was just dismissed out of hand,” he added..

By: Peter Vieth  November 13, 2015

http://valawyersweekly.com/2015/11/13/va-supreme-court-rejects-criminal-discovery-change/#ixzz3rrdNjAzA
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State Trooper Was Marijuana Conspiracy ‘Manager’

A South Carolina highway patrolman who set up a large-scale marijuana-growing operation on his rural property and who made growing equipment purchases, used his patrol vehicle to transport marijuana and conspired with others in the operation has his conspiracy sentence enhanced three levels for his role as a manager/supervisor of the drug conspiracy; the 4th Circuit affirms defendant’s 60-month sentence.
The federal sentencing guidelines, USSG § 3B1.1(b), allow for a three-level upward adjustment to a defendant’s offense level if the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive. A district court’s determination that a defendant held a leadership role in criminal activity is essentially factual and therefore is reviewed on appeal for clear error.
Defendant contends the undisputed facts in the presentence report indicate only that he exercised some management responsibility over property involved in the drug conspiracy, rather than management or supervision of any of his co-conspirators.
The record here contains evidence that defendant exercised management or supervisory authority over one other person. We first observe that defendant used his police vehicle on two occasions to follow a co-conspirator who was transporting marijuana in a separate vehicle. It is also undisputed that defendant’s purpose in performing those actions was to use his position as a state highway patrolman to prevent any other law enforcement agency from stopping the co-conspirator’s vehicle. Thus, defendant’s judgment that the coconspirator’s acts should be shielded by defendant’s use of his patrol car reflected a management decision regarding the manner in which another participant in the conspiracy was to conduct the conspiracy’s business.
Further, defendant’s act of transferring the electric bill for the property from his own name to the coconspirator’s name “to avoid detection” also reflected an exercise of authority over the coconspirator and a management decision regarding which coconspirator should be assigned a particular risk of exposure for the crime.
The evidence here is sufficient to support the district court’s conclusion that the defendant was a manager or supervisor of at least one other person. Its determination was not erroneous.
Enhanced sentence affirmed.
U.S. v. Steffen (Keenan) No. 12-4484, Dec. 20, 2013; USDC at Charleston, W.Va. (Houck) Kimberly H. Albro, FPD, for appellant; Robert N. Bianchi for appellee. VLW 013-2-242, 12 pp.
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According to VSP, during the 2013 Thanksgiving weekend, state troopers participated in the annual, nationwide Operation C.A.R.E., an acronym for Combined Accident Reduction Effort. The state-sponsored traffic safety enforcement program focuses on reducing crashes, injuries and fatalities caused by speeding, impaired driving and failure to use occupant restraints. 

As part of the Operation C.A.R.E. initiative, Virginia State Police cited 9,841 speeders and another 2,697 reckless drivers statewide. Troopers arrested 98 impaired drivers and issued 772 seat belt citations. State police also cited 213 child restraint violations.
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