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During the 36 years that I've practiced law, I've learned that preparation for trial isn't just important, it's EVERYTHING. To successfully represent you, an attorney must be intimately familiar with the facts of your case. Attention to detail is crucial.
Therefore, when we meet, I will ask you about the tinest details, some of which may seem completely insignificant. However, a full command of those little tidbits and having the experience to know what to do with them often means the difference between winning and losing.
I was the elected prosecutor (Commonwealth's Attorney) for Pulaski County, Virginia, for 20 years. During that time, I prosecuted hundreds of felony and misdemeanor cases - dozens before a jury - from drunk driving to capital murder, and everything in between. In 1980, I successfully prosecuted the man who killed Radford University freshman, Gina Renee Hall, whose body has never been found. That was the first time in Virginia that anyone had been convicted of murder without a body. At the time, it was one of only seven or eight reported decisions in the English speaking world where someone was convicted of murder without a body, an eyewitness or a confession. Her murderer, who was sentenced to life in prison, remains incarcerated today.
The vast, invaluable experience that I acquired as a prosecutor is what I now put to use when I represent you, and what only a few criminal defense attorneys have ever received. I defend everyone to the best of my ability, and if there's a possible way out, I pursue it in earnest - whether you're guilty or not.
If you've committed a crime, I won't condemn, berate or ridicule you, because that's a waste of time and not what you want or need. Instead, you need my understanding, concern and capable assistance. I'll carefully explain the criminal process and the law that applies to your case, and make you as comfortable as possible, both in my office and with the several decisions that you may have to make.
Because many of you will be contacting me about a felony charge that has been placed against you, I have included the following information. Most of you are not familiar with the court system or how a case proceeds through it, so it should address some of your initial questions and concerns, and offer a basic explanation of some important constitutional and statutory rights that you have.
PROCEDURES IN FELONY PROSECUTIONS
1. If you were arrested on a warrant (as opposed to an indictment), or were arrested without a warrant and the police officer then obtained a warrant, you have the right to a preliminary hearing in a district court before your trial in circuit court.
A. At the preliminary hearing, the Commonwealth's Attorney will present the testimony of one or more witnesses. With this testimony, the Commonwealth's Attorney will attempt to establish "probable cause" that you committed the offense with which you are charged.
B. The Commonwealth's Attorney does not have to prove that you are guilty beyond a reasonable doubt at the preliminary hearing.
C. Although you are entitled to present evidence at the preliminary hearing, for reasons that I will explain to you in person, it usually is not a good idea to do so.
D. If the district judge determines that the Commonwealth's Attorney has presented sufficient evidence to establish probable cause, he will "certify" the charge against you to the circuit court for trial. The judge does so because a district judge does not have the authority to decide whether you are guilty or not guilty of a felony.
E. If the judge does not believe that the Commonwealth's Attorney has presented sufficient evidence to establish probable cause, he will dismiss the charge against you. However, if the charge is dismissed, it does not mean that you cannot be tried for the same offense at a later time. This is because the preliminary hearing is not a trial, and your constitutional right not to be tried twice for the same offense does not apply.
F. If the charge is dismissed at the preliminary hearing, the Commonwealth's Attorney may elect to present the charge to a grand jury (see further information below about grand juries) in an effort to obtain an indictment. An indictment, much like a warrant, is a document that charges you with a crime. If you are indicted by a grand jury after the charge was dismissed at the preliminary hearing, you will again be arrested, processed, and possibly incarcerated. Should this happen, you need to contact my office immediately.
G. The testimony at the preliminary hearing will not be recorded unless you instruct me to hire a court reporter. However, if you eventually have a trial in circuit court, it is very helpful in many cases to have a transcript of the testimony at the preliminary hearing available at trial. This is because witnesses sometimes change their testimony and a transcript of what each witness said at the preliminary hearing would enable me to impeach or discredit that person's trial testimony. I will be happy to discuss whether you should have a court reporter at your preliminary hearing and the associated costs.
2. If the charge against you is certified to the circuit court, it will be presented to a grand jury before your trial.
A. A grand jury (which is a small group of reputable citizens from the county or city where the charge is pending), much like the judge in the district court, hears the evidence against you and determines if there is probable cause to believe that you committed the crime with which you are charged.
B. If the grand jury determines that there is probable cause to believe that you committed the crime, it will return an indictment. The indictment is the formal charge on which you are tried. An indictment must be returned against you before you can be placed on trial.
C. Neither you, nor I, have the right to be present when the grand jury considers the evidence against you. Nor do you have the right to present evidence to the grand jury. Usually, the only witness that appears before the grand jury is the police investigator.
D. If the grand jury does not find probable cause to believe that you committed the crime with which you are charged, it will not indict you and the charge will be dismissed. However, 1) this rarely happens, and 2) the Commonwealth's Attorney is permitted to present the charge to another grand jury at a later date in an effort to obtain an indictment.
3. Even if the police believe that you committed a crime and intend to charge you, they do not have to obtain a warrant for your arrest.
A. The Commonwealth's Attorney may instruct the police that he will present the charge against you directly to a grand jury. In this situation, just as it is described above, a grand jury considers the evidence against you and decides whether to indict you or not.
B. If you are indicted, you will then be arrested and processed.
C. In this situation, you bypass the district court and are not entitled to a preliminary hearing. Instead, the charge against you goes straight to trial, usually within a few months after your arrest.
4. If you are indicted and have a trial in circuit court, the following apply, which I'll go over with you in greater detail in person if you employ me to represent you.
A. You are presumed to be innocent. This presumption applies throughout your prosecution and you cannot be convicted unless and until the Commonwealth's Attorney proves your guilt beyond a reasonable doubt.
B. You have the right to plead not guilty and the right to a trial by jury. If you have a jury trial, the jury hears the evidence and decides whether you are guilty or not guilty. If a jury finds you guilty, it then gets to see your criminal history before it fixes your punishment within the range provided by law.
C. You also have a right to waive, or give up, your right to a jury trial, in which case the judge would hear the evidence and decide if you are guilty or not guilty. However, the Commonwealth's Attorney also has the right to a jury trial. Therefore, if the Commonwealth's Attorney elects to have a jury trial, your case will be tried by a jury, even if you wish to be tried by the judge.
D. You also have the right to plead guilty, in which case you give up your right to a jury trial, your right to confront your accusers, and your right to remain silent. You will be found guilty and sentenced by the judge after he reviews a background report or the plea agreement that you enter into with the Commonwealth's Attorney and the state's sentencing guidelines, which recommend a range of punishment to the court based on the nature of the crime and several other factors.
E. You also have the right to plead nolo contendere, or no contest, which plea, for all practical purposes, will be treated like a guilty plea.
5. If you plead not guilty, but are found guilty, whether by a jury or by the judge, you have the right to appeal your conviction. In that event, I will discuss your options with you in detail.
Please call to schedule an appointment so we can discuss your case. I look forward to meeting you so I can assist you with what might be the most troubling time in your life.
DISCLAIMER: This site is intended for information purposes only and is not intended to, nor does it, constitute legal advice to anyone, nor does its review by any person create an attorney-client relationship with Mr. Shockley. All legal information set forth above is intended to represent the current state of the law in the Commonwealth of Virginia on the subjects discussed. Laws change, however, and it's possible that the above information is outdated. Therefore, do not rely on the information contained herein to make any legal decision. Instead, always seek the advice of a licensed attorney in the state in which your matter is pending before changing your legal position. Each case is different and the outcome depends on numerous factors, some of which are beyond the control of the attorney. Past successes do not guarantee or predict that the coutcome of your matter will be successful or that you will ultimately be satisfied.
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