Bassel Khalaf:
Welcome to WK POD, home of the never ending podstable where we discuss legal issues. Some of our guests are attorneys, some are not. Do not take anything on this podcast as legal advice. If you have questions about a legal issue, get your own attorney. Peace!
Hey, it's specialist episode. We say that about all the episodes. This one's not any extra special.  

Taite Westendorf:
No, we really mean it this time. This is the one for real for real.

Bassel Khalaf:
I'm sorry if we hurt you, baby. But for real this time, we mean it, come back. We're talking about jury sentencing. This is a Virginia specific issue. So if you don't care about non-Virginia issues, GTFOH. But if you do care, then stick around because this is gonna get sick. There's a new bill, what is it House Bill 5007.

Taite Westendorf:
The one I'm looking at is the senate version, SB 5007.

Bassel Khalaf:
Ah yeah, that one. Senate Bill, there's a bill. Anyways, Taite's gonna talk about it because he's a connoisseur of the jury life, and he'll tell you all about it. But the Sixth Amendment of the Federal Constitution says that we all are entitled to a trial by a jury of our peers and that's a super special thing if you're an American. Virginia has perverted it in the most perverted sort of way by saying that the state can demand a jury trial and they've taken it from a right you have that can protect you to now it's a weapon that could be used against you. But Joe Morrissey, the legislator guy who introduced the bill is trying to prevent that because he's a good dude apparently. I know nothing about him other than...

Taite Westendorf:
You don't know anything about Joe Morissey?

Bassel Khalaf:
I know about Jim Morrison, and I know about Morrissey from the 80s but what does Joe Morrissey do? 

Taite Westendorf:
Well, he's done a lot of interesting things. He's done a little bit of time in the slammer.

Bassel Khalaf:
What? Tell me about that.

Taite Westendorf:
He impregnated a very young girl, but they ended up getting married, and have loved happily ever after.

Bassel Khalaf:
How young are we talking?

Taite Westendorf:
I'm pretty sure a part of his problem was she was not of age when they first got together. 

Bassel Khalaf:
Tomato tomahto. Anyways, so we've got...

Taite Westendorf:
But he's a real one when it comes to jury sentencing. 

Bassel Khalaf:
Apparently. Shit, I thought we were just gonna talk about a boring ass law, but now it's getting Jerry Springer-esque and I kind of like it. So Joe Morrissey apparently has a backstory. He was not the frontman for the Doors and he was also not a heartthrob emo icon in the 80s. So fuck, tell me all about it. You're the man on juries. 

Taite Westendorf:
So let's get off Joe Morrissey's biography. And we'll jump into the substance. 

Bassel Khalaf:
We're gonna come back to you though. Joe Morrissey, don't think you're off the hook you dirty dog.

Taite Westendorf:
So the proposed law change. Well, it's passed. So now it's going up to Northam to sign. But the idea is that...

Bassel Khalaf:
Northam is our governor. 

Taite Westendorf:
Yeah, so this bill would get rid of mandatory jury sentencing. The way things exist now and have existed for a long time in Virginia is that if you have a jury trial, and you're convicted of anything, whether what you're charged with or something lesser included, then you go immediately into jury sentencing as well. And the jury recommends your sentence. And we'll get to what recommendation means a little bit later on...

Bassel Khalaf:
Your tone of voice makes me picture air quotes. And I think that's completely justified because they don't just recommend, they basically hand down a sentence that almost always the judge follows. So while people might say, well, it's a recommendation, it's not a recommendation, it's what the judge actually does in the end.

Taite Westendorf:
Right. This bill says that's no longer a thing. The default is, if you're convicted after a jury trial, you get a judge sentencing you at a later date, unless the defendant affirmatively says no, I actually really want to have a jury sentence me for some reason. And we will probably get into the very narrow circumstances where that might make sense, but it's not going to be many cases where somebody is going to want a jury sentencing them rather than a judge. But all right, so let's take a step back here. Why is this a big deal? So Virginia is one of only a handful of states in the entire country right now that has jury sentencing in any way, shape, or form. One of only six states, the other five are Arkansas, Kentucky, Missouri, Oklahoma and Texas. And Virginia and Kentucky are the only ones in the entire country that have mandatory jury sentencing. So in other words, there is no judge sentencing period after you've been convicted after a jury trial. So just us and Kentucky. Kentucky's usually not very good company to be in. They're number one in things like marriages between cousins and...

Bassel Khalaf:
Bourbon. 

Taite Westendorf:
Well okay, I'll give them that. Beastiality I think they're pretty high.

Bassel Khalaf:
Fried chicken.

Taite Westendorf:
They got the colonel. They got the extra crispy, and they're doing that right. But they do a lot of things wrong too. But also federal courts I left that out. So 45 states and the federal courts all think that judges ought to be doing the sentencing and not juries. And why is that? All the statistics bear out that jury sentencing in Virginia is extremely harsh, way harsher than what people would typically get after having a bench trial. And a bench trial is when the judge has decided whether you're guilty or innocence or what you're guilty of. And why that is, it's complicated. Part of the reason is that juries don't have as much leeway as judges. So for instance, if you have a jury trial for anything that's a class four felony or above, you have to impose prison time as a jury sentencing, no matter even if you don't want to. So you can think of, like malicious wounding, that's a class three felony. So if somebody is convicted of a malicious wounding, even if the jury hears all the facts and says, Oh, well, we don't really want to give this guy much time if anything. They have to give five to 20 years. So five is the minimum jury recommendation. So basically, somehow it gets transformed into a mandatory minimum crime if it's a jury trial.

Bassel Khalaf:
So yeah, a judge can give you five years, but suspends pretty much all of it unless there's mandatory time on it. But when you say mandatory jail, you have to give a mandatory jail sentence and a judge can say, I'm giving you the mandatory five years, and I'm suspending all of it, except for six months, but a jury can't say, I'm giving you five years, and I'm hoping that you'll suspend all of it except for six months. So there's no mechanism in place. And it sucks.

Taite Westendorf:
Yeah, it's really stupid. And because of the way the system is set up, you would think that the right to have a jury trial is something that's enjoyed by criminal defendants. It's your Sixth Amendment right. But in Virginia, perversely, prosecutors use it as a weapon against criminal defendants. In Virginia, jury trial is a threat more than it's a right. And it's a complicated thing. But there's the federal constitution that we talked about. Virginia also has a constitution. And the courts in Virginia have interpreted the Virginia constitution as giving prosecutors the right to request a jury just the same as criminal defendants. That's fucking crazy. I don't agree with that interpretation. I don't want to get off on a tangent talking about that for an hour. But that's the way the courts have interpreted it. So if you're a criminal defense attorneys like us, you've had lots of circumstances where prosecutors will say, if you don't accept this offer, or you don't agree to do XYZ, we're going to request a jury trial.

Bassel Khalaf:
Yes. All right. Well, it's crazy because we talked about the foundations of our country and the things that the soldiers have died for, and all this stuff. And I say that not too flippantly because that is a real thing. But you know, we have this idea we have an infrastructure with rights and a right to a jury trial and it's unique to America for the most part. A lot of countries, the government says you did it and good luck, you're done for. But then Virginia took that and said well, alright, you know, the government now gets a lot of that power back by using that right against you. And you're gonna have to take it with no, I don't know what you'd say. 

Taite Westendorf:
No Vaseline? 

Bassel Khalaf:
No Vaseline. I was trying to find a euphemism for a lubricant that wasn't crude. But no vaseline. Ice Cube respek. Anyway, so you know...

Taite Westendorf:
Can you do? You're you're better at it than I am. The Ice Cube thing. Like, yay yay.

Bassel Khalaf:
Yay, yah. Is that good? 

Taite Westendorf:
That was good. Thank you. 

Bassel Khalaf:
All right. So anyway, I don't even remember what I was trying to say other than. Oh, yeah, here's what I was trying to say. So yeah, Taite was giving the history about you know, just basically saying our country is built on this and now Virginia decided to do this. And we're still talking about hundreds of years ago, I'm sure. I don't know when the Virginia Constitution was ratified. 

Taite Westendorf:
Before Ice Cube I'm pretty sure. 

Bassel Khalaf:
It was probably before. It was B.C. Before cube. But it makes me wonder. So today's standards. Only Kentucky, that's the only other state that's like this is a thing but there's still people kicking and screaming in Virginia. Modern men and women of Virginia. And we're not gonna call them out by name unless Taite wants to. I'm not gonna do that, but these people, so what? What's the rationale behind keeping the status quo when we know it's so fucking wack that only Kentucky follows whatever rationale these morons are trying to put forth.

Taite Westendorf:
So I didn't think this would be very controversial, because all of the data, all of the statistics show that jury sentencing results in crazy, unjust sentences. And there's really no doubt about that if you have half a brain cell and you look through the data. And anybody who has the practical experience of being in Virginia courtrooms knows what the deal is, and knows that jury sentencing has crazy results. They're crazy unpredictable, any defense attorney has given some variation of a speech to their client many times that, Oh, well, a jury trial is great for guilt versus innocence. And jurors are typically a lot fairer about assessing the credibility of police officers and keeping an open mind. And they're a lot less jaded and cynical than judges are. But the downside is, if you're found guilty, you are fucked royally. And therefore most people conclude there is too much risk involved in taking their case to a jury. But the counter argument I've heard since this bill got passed. There's a couple variations of it I've heard. One is sort of this, Oh, well, jurors because they come from the community, they sort of represent the conscience of the community. And so if you've committed this heinous crime of you know, murder or rape, it better represents the conscience of the community. I think that's a really limp argument. It's, I think, a little insulting to judges this idea that you're a softie on rapists, and murderers, and you must love them and you can't be trusted. 

Bassel Khalaf:
And by community, I'm picturing the pitchfork and torch community. Remember Beauty and the Beast. Kill the Beast. And a lot of these people are beasts, a lot of people who commit heinous horrible crimes, but that's why you have a justice system and a just result and judicial officers such as a judge who probably has a better idea than Joe Schmo, who's probably the same guy commenting on an internet story about let's kill the guy and put a bullet in his head. Some cases, maybe it's warranted. But for the most part, you know, we don't want this mob mentality. We don't want this race to the bottom, we want somebody who's a measured sober as a judge human being, who's also aka a judge who's going to come in and help administer a just result. So this idea that jurors can come together and be the be the voice of the community and give a just sentence is completely made up and whoever is advocating for that. I don't know. If there was an ISIS lobby, they'd probably advocate for that, too. What do you think?

Taite Westendorf:
This is the reality. When people report for jury duty, you don't know who you're going to get. Some of these people are dumb as bricks, you would be shocked at the questions I've gotten from juries after trials. They will focus on issues that are totally irrelevant to the case. You are not always getting the brightest bulbs in a jury panel for one. Two, they're getting no guidance whatsoever. Juries when they're deciding people's sentences, they don't get any guidance, they do not get sentencing guidelines. Sentencing guidelines are something that judges get. And it's actually probably the most important factor in what judges do when they sentence somebody. Sentencing guidelines are basically an algorithm where points are scored for what the current offense is, certain factors associated with a current offense, like was a gun involved, was somebody seriously injured. And then the biggest thing is what is your prior criminal history. And if you have a terrible criminal history, there are all sorts of enhancements to it. And it spits out a range that is the recommended sentencing range. And so the idea is that there's consistency in sentencing all over the state for people that have committed similar crimes that have similar records. Jurors don't get that. At all. So not only do jurors, unlike judges, they've never done a sentencing before. They probably have never been involved in a criminal case in any capacity before. So they're already kind of flying blind. Then you don't give them sentencing guidelines. And you say, hey, just pick a number out of thin air. And then another layer of nonsense on top of all of that is jury sentencing because you can't just impanel a jury for months at a time, you have to let them go home at some point. Jury sentencing happens literally immediately after the trial. So I've had circumstances where you had jury trials that took weeks, you know, I had one that took over two weeks, and the attorneys are completely exhausted, the judge is exhausted, the jurors are exhausted. And you launch immediately into a sentencing hearing. And I think any defense attorney will tell you, you've just had your client convicted, you've just been kicked in the teeth. All of your focus has been on pouring every ounce of your energy into making the best arguments for your client to be acquitted. And then to immediately just segue wildly into Alright, now we're gonna talk about sentencing. Nobody is in a position to put their best foot forward under those circumstances.

Bassel Khalaf:
Yean, and we've been in the same situation on juries where your objective...If you're going to jury trial, you're in it to win it. So you're not really having a conversation with your client much about if we lose, here's the next step. You kind of reflect and you talk about it a little bit and just tell them it's a possibility and let them know that jury sentencing is wildly unpredictable. But it's not like you've got you know, Plan B sitting right there. All your sentencing witnesses ready to go. Because one of the problems is with a judge, you can say, hey, Judge, look, there's eyebrow raising evidence, there's reason to be concerned, but it just simply didn't rise to beyond a reasonable doubt. And you can make that argument to a judge and the judge knows what the law is. But you get in front of a jury, you're not talking in that language. You're talking about the guy didn't do it. You're saying the evidence shows he didn't do it. He didn't do it, he didn't do it, he didn't do it. And they come back with a guilty. Yes, he did it. It's hard to get up 10 minutes later and say, hey, look, now we know he did it. 

Taite Westendorf:
J/K, LOL. 

Bassel Khalaf:
Exactly. You can't have that honest conversation. Because 'm sure Taite's done the same thing. And I've done it for sure. But you know, even on cases where I fully believe my guy should have been found not guilty, and he got found guilty. The standard line is, we respect your decision, we thank you for your service. And while maybe I disagree, I came here to fight for my client. I've done that from second one. And until this case is over, I'm going to continue to do that. So I'm asking you to give them the bare minimum because maybe you're implying that they got it wrong. So you're speaking this whole different language. And when it's a judge, you can say, judge, all right, cool, the process played out and he had his day in court. And what's the next step? And it's this compartmentalized thing where it makes sense. But with jurors, you're just like, Hey, I know I just told you he didn't do it. And now we know he did it. But come on, you know, it's weird.

Taite Westendorf:
And contrast that with how it's done in other courts. In federal court for instance. Let's say somebody is convicted after a jury trial, you're continuing it for a sentencing months later. All right. So both sides have plenty of time to form their arguments, gather whatever evidence and witnesses they think are relevant. In federal court, they even write out these really lengthy sentencing memorandums where you're basically putting your best sentencing arguments in writing and saying, if you're the defense attorney, you're saying, oh, here are all the mitigating things about my client. He's worked for children's charities, and he's a great dad. And here's what his employer has said about him and all these wonderful things. And, you know, here are the facts about the case itself that reflect he's not dangerous, and so on and so forth. It takes time, I don't care how brilliant you are as a defense attorney or a prosecutor for that matter. In order for you to effectively form a sentencing argument. You can't do that shit on the fly, you need time to put it together. So the way that we do it really doesn't make any sense. And the results end up being absurd. And all of the data reflects that. Every year, the Virginia Sentencing Commission produces an annual report, and I will spare you looking through it, but it's available. If you look it up every year, you can look up the latest edition of it. What it will show is almost year in and year out that juries are about five times more likely to sentence above sentencing guidelines than a judge. So in other words, about five times more likely if you're convicted by a jury that you're going to get a punishment on the severely harsh end. But that doesn't even tell the entire story because it also shows that with the juries, the median sentencing guidelines departure was something in the neighborhood of four to five years. So they're not just going over the sentencing guidelines, they're crushing it over the sentencing guidelines. And I've  done these blog posts, I've done a bunch of blog posts where I've been really critical of jury sentencing and making the argument that we're, you know, pulling up the the end of the wagon train along with Kentucky on this, and we need to change our ways. I don't know man. It makes me so sick to my stomach. I completely lost my train of thought. 

Bassel Khalaf:
Alright. So what's his name? Joe Morrissey is the one who finally stepped up to the plate and whatever his past sins are, and I had no clue. I'm sorry, Joe Morrissey said, I'm gonna put you on blast, but Taite did. So if you want to be mad at somebody be mad at him. But this guy finally puts forth a reasonable bill regarding jury sentencing. And now we have the components in the legislature to make it a thing. And defense attorneys are happy. It's a game changer. And it's a game changer, because it's no longer a sword against your client to have a constitutional right to a jury. In fact, we've told every single client who's inquired about a jury and you know, even the ones who don't inquire, you still kind of talk about the topic, even though it's pie in the sky for some of them. It should not be on the table. But for guilt or innocence, a jury is almost always better, because it takes 12 people to agree that you're guilty to find you guilty. And if the 12 don't agree, you're either found not guilty, or it's what's called a hung jury where they can't agree, and it's a mistrial. And the prosecutor has to you know, reassess. 

Taite Westendorf:
Did you ever see the Ali G episode, where I think he was interviewing the former Attorney General, and they were talking about hung juries, and he was acting like he was confused? That the jurors, why does it matter that they pack so much heat between their legs.

Bassel Khalaf:
No. But hung jury is one of those that always gave me a chuckle on the inside. So yeah, I wish I was on a hung jury. Anyway. So yeah, I'm pretty sure I've seen that Ali G. Boutros, Boutros, Boutros Ghali. He's got some gold. In fact, what's today? October 22. 

Taite Westendorf:
I'm really looking forward to the Rudy Giuliani one.

Bassel Khalaf:
I know. Yeah, I would be very disappointed if nothing comes of it. Because anyways, whatever this is going to be outdated in one fucking day, pretty much.

Taite Westendorf:
Well, let me launch into this because I totally forgot about this. So this whole conscience of the community argument that didn't really seem to be getting a whole lot of traction. But what did seem to be getting a little more traction with maybe more independently minded people out there was this idea that it was going to be super expensive. So even the Pilot, the editorial board had this really weird editorial today that was almost being sarcastic about all these new laws that were being passed. But anyway, it's, it was it was a very strange editorial in the paper this morning. But one of the things they said was, well, I guess we'll see how it plays out. But you shouldn't be so dismissive of these arguments that it's going to end up being crazy expensive, and lead to very delayed justice, because the court system is going to get so backlogged because everybody's gonna want a jury trial all of a sudden. And we're gonna need more prosecutors because everybody's gonna want a jury trial all of a sudden. And I will tell you right now, that is an absolute crock of shit. A. What is going to happen is highly, highly unpredictable. And there's going to be a lot of variables involved. And it's going to depend a lot on how prosecutors adjust to the new world they're living in. If prosecutors are going to dig in their heels and say, we're not going to make any changes to our current policies, there is no doubt going to be an uptick in jury trials. Now, that being said, trials are rare period. Not just jury trials. Trials. Well over 90% of felony charges result in a guilty plea. That will not change under this law. It just won't. Aside from that. There's still a lot of unpredictability with taking your case to a jury trial, even if there is judge sentencing. It's not gonna be all of a sudden jury trials galore. Then aside from that, I think most logical prosecutors now that they don't have that weapon available to them where...Let me give you a very concrete example. So we practice primarily in Virginia Beach. In Virginia Beach, it's been a long standing matter of policy in the Commonwealth Attorney's office that if you want to have a trial on a drug dealing charge, they request a jury. And that policy has basically eliminated any trials on drug dealing charges in Virginia Beach. I don't know that I can even remember a single time in the last 15 years that I saw a jury trial for a possession with intent to distribute schedule one or two substance. The reason is, if somebody is found guilty after a jury trial, the minimum they can get is five years and they can get up to 40. With sentencing guidelines, if you don't have a prior record, those people are probably getting less than a year, year-ish. So it doesn't make much sense for those people to take their case to a jury.

Bassel Khalaf:
Especially imagine it's a third offense drug distribution, and the jury hears that you've had two prior convictions and you're like, but for real, he didn't do it the third time. And yeah, that whole dynamic.

Taite Westendorf:
Right, but to get back on my train of thought. Where I was going with that is when the law changes. And hopefully, Northam signs it, it goes into law effective July 1, 2021. Obviously, that's just not a tool that the prosecutor's office will have available to them anymore. And I'll tell you, I don't even blame them for using that tool. I mean, it gives them tons of leverage, and they use that leverage. That's their prerogative. But they won't have it available to them anymore. So they're going to have to adjust. And the way they're going to have to adjust is by making plea offers like they do on every other charge. And those plea offers are going to be based on the quality of the evidence, what the sentencing guidelines are. And if it's a weaker case, or it's a sympathetic defendant, they're going to get offers towards the lower end of their sentencing guidelines. And accepting that offer is going to make sense to the vast number of people that are charged, and they're going to plead guilty.

Bassel Khalaf:
Yeah, less witnesses having to come in, less resources expended. So you're kind of talking about the practice. Some people bitch and moan about the resources, and it's gonna cost more money and all this stuff.

Taite Westendorf:
They're pulling that out of their butt hole. There's nothing to suggest that's true.

Bassel Khalaf:
I agree. It's coming deep from the butt hole as the Italians will say. But you're talking about the practical, real application and the theoretical application. I mean, to me, this is no different than saying, oh, man segregation, it's a horrible thing. But if we're going to integrate the fountains, it's gonna be a lot of money, we're gonna have to spend money, the infrastructure, Oh my gosh. When you done fucked up the justice system for this long to the point that only you and Kentucky are left holding on for dear life to this nonsense structure. Get the fuck out, you're done. And if it costs money, then it costs money. But you want to talk about we live in America, blah, blah, all that type of stuff and justice, and you're gonna say it cost too much to have justice. So let's have this horribly unjust system, where we're this complete outlier. And, man, you just think about the kids, some child victim in a case is now not afforded the luxury of this horribly unjust system. And that's unjust in itself. And not just defense attorneys, I think most normal human beings would hear that and say it's complete horseshit. And, you know, I get it, I get that the state would like to have as many swords as possible to impale people with when the time is right. But homie, this ain't it. It ain't it chief. 

Taite Westendorf:
Yeah, that was that was a great point. Some people might say, you know, segregation and the right to a jury are two very different animals. And they are, of course. But all constitutional rights are to be respected. The right to confront witnesses against you; the right to jury; the right to due process, those are all important things, all important parts of having a functioning criminal justice system. 

Bassel Khalaf:
And they all cost money. 

Taite Westendorf:
Exactly. So it wasn't until, what the the 1960s, there was a famous case Gideon v. Wainwright that finally said, if you're charged criminally, you need representation. We can't have an honest, functioning criminal justice system if it's one sided. Where prosecutors can just pound the hell out of poor defendants who don't have an attorney who's qualified to stand up for them. So I can imagine in that age, there was a lot of belly aching about, Oh my god, attorneys for poor people, imagine what this is going to cost. And yet somehow we've adjusted and I think we would all agree that we have a system with a hell of a lot more integrity that we can be proud of as a country as a result of that.

Bassel Khalaf:
Yeah!

Taite Westendorf:
Yeah!

Bassel Khalaf:
We're at 30 minutes. Are we wrapping it up now? 

Taite Westendorf:
Yeah, I think so. I actually have to go to the jail. 

Bassel Khalaf:
Oh shit. Should I end with a song? 

Taite Westendorf:
Yeah, let's do it right. 

Bassel Khalaf:
Jury sentencing song. I'm just making it up. Because if you wanna put your head up your butthole, jury sentencing is the thing for you. If you wanna put your head up your butthole then jury sentencing is what your legislature should do. 

Taite Westendorf:
Fuck face.

Bassel Khalaf:
I'm gonna play the end riff. The never ending podstable. 

Taite Westendorf:
That falsetto was on point.