Ep. 3: Top 5: Things That Piss Us Off

Westendorf & Khalaf, PLLC discusses their top 5 hide-chapping issues in the criminal justice system.

Transcript

Bassel Khalaf:
Welcome to WK Pod, home with the never ending postable 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!
Hello, this is Bassel Khalaf. Wk Pod. Today's topic is going to be the top five things that piss us off. We haven't come up with a punchy enough title. Basically, we're in the trenches. We're in court most days, and we see things that piss us off. We've got five topics, we're going to try to zip through them pretty quickly. Do you think we should list the topics now? Or should we just...

Taite Westendorf:
Let's let it flow organically baby.

Bassel Khalaf:
Baby, baby, let's do this. The first thing we're going to talk about is going to be jury sentencing. That pisses both of us off, but it pisses Taite off the most. Why is that?

Taite Westendorf:
Yeah, I really, really hate jury sentencing. And I think it's one of those. When I say quick fix, I mean, if we were to do what almost every other state in the country does, I think it very quickly could improve the criminal justice system in Virginia. So to give you the short version, pretty much every state out there, the way the system works is if somebody has a jury trial, and the jury finds you guilty, then there's a separate hearing where the judge determines your sentence. And there's a lot of variation between what  different states do. Some states have sentencing guidelines based on algorithms, others don't. But in any event, the idea is jurors are equipped to listen to all of the evidence and to figure out whether a case has been proven beyond a reasonable doubt. But what they're not very good at doing is figuring out a sentence, because that's not what they do. They're not professional judges, they've never sentenced anybody before, they don't have access to data and training and sentencing guidelines. So the idea is sort of let's have this bifurcated process where the jury determines guilt or innocence, and then a judge figures out what your punishment should be. So in Virginia, we're one of the only states in the entire country that has a jury sentencing scheme. And it's actually a mandatory scheme. There are some other states where people can choose whether they want to be sentenced by a jury or not, but ours is mandatory. So the way it works is you have your jury trial, let's say the guy is convicted, then the jury on the spot, you immediately launch into a sentencing hearing. And the jury does not get sentencing guidelines. They hear arguments on both sides. And you can present evidence on both sides, although this is usually after a two, three, if not more day jury where the attorneys are exhausted, the defense attorney just got kicked in the teeth by losing. So it's not exactly the optimal moment to be presenting an effective sentencing argument. And then the jury just picks a number. And it's really a number that they have to pick out of thin air because they have zero guidance whatsoever. So just to give you an example of how crazy this can get. If you're convicted of robbery, the possible sentencing range is five years to life. And we just hand it to the jury and say Hey, y'all 12 go flail around in the back and come up with a number. So as you can imagine, this is extremely, extremely unpredictable, and very scary to criminal defendants. And so the end result is that it is a really strong deterrent against people exercising their right to a jury trial. And actually, when I said it's unpredictable, to the extent that it is predictable jury sentences are predictably extremely harsh. The data shows that they're five times more likely to go above what the sentencing guidelines were. Of course, they have no clue what the sentencing guidelines are. So it's a massive, massive problem that really strongly discourages people from having trials. And the data, you know, is well over 90% of felony cases result in guilty pleas. Another aspect of this that's troubling is that the Virginia constitution has been interpreted as giving prosecutors the right to demand a jury trial, which is, in my opinion, crazy, because we think of the right to a jury trial as something belonging to somebody who's been charged with an offense. But in Virginia, we've actually turned it into a weapon that can be used against criminal defendants where a prosecutor can say, Okay, well, I'm going to request a jury on this possession with intent to distribute case. So you're going to be absolutely insane to actually go through with it. Because minimum a jury has to give you five years and give you five to 40 but if you plead guilty, you're probably going to get something in the range of like a year. So it's a twisted system. It's hard to get into all the nitty gritty of it in five minutes, but we're trying to keep this thing nice and streamlined. Jury sentencing sucks it needs to go.

Bassel Khalaf:
It definitely gots to go. And again, it's like this thing where it's five to life sentencing range, a judge could suspend some of the time. So he could send us up to five years and say I'm suspending four of those years, so you serve one year, juries can't do that. They can't say, we recommend you suspend some time and put the guy on probation. They pretty much just pick a number, usually out of thin air. If they like the guy's face, or think he looks stupid, or whatever the case may be, nobody knows. I mean, it's just random things that pop up on sentencings. And that's always the problem as we talk to clients, you know, is a jury a good idea. It's usually a decent idea for guilt or innocence, because the prosecutor has to convince 12 people on a felony trial that you did it. And if they can't do that, then you're not being found guilty. It's either going to be a not guilty, or I suppose a hung jury. And that usually gives the defendant more leverage to negotiate a better deal or the case gets dropped, or you go round two on a jury and see what happens. But you have a constitutional right to a jury and the fact that all the data shows that jury sentencing is just a complete shit show. It disincentivizes you exercising that constitutional right. And that's the biggest problem with it. Yeah, you got a right to a jury. But good luck if you're found guilty, because whereas you might have gotten two years, three years now you're facing the possibility of the jury recommends life and you know, the percentage on how often they adopt the recommendation, whatever it is. It's the judges almost always go with what the jury has recommended.

Taite Westendorf:
So yeah, that's actually a good point. Because some very smart people, smarter than I am, there's this guy who's a Supreme Court rockstar Jeffrey Fisher. He's a law professor at Stanford. And he's come to some of these indigent defense commissions where the defense attorneys gather and he's given a presentation basically making the argument that the jury sentencing scheme in Virginia is unconstitutional. But the primary reason it's survived scrutiny to this point is that at least in theory, a judge still has the discretion to modify the jury recommendation. So the jury makes a quote unquote, recommendation, and then the judge can modify it or can suspend part of it. But the statistics show that almost never happens. The Virginia Sentencing Commission publishes an annual report every year. And as I recall, I think I'm right on this. I think it was 87% of jury recommendations were untouched. So if you're going into it with the strategy of we have no clue what the jury is gonna do, but we know that judge will swoop in and save us, now that ain't gonna happen.

Bassel Khalaf:
Yeah, there's a correction mechanism, but it doesn't work. So it's not actually a correction mechanism. Alright, so jury sentencing pisses us off. The next thing would be citizen complaints. I used to be a magistrate pretty fresh out of law school. It was the first job I had, I learned a lot in that job. Being a magistrate in Virginia, you have citizens come in. It's not only citizens, but part of your job and the part that pisses me off is that citizens off the street can come in, be put under oath, fill out a criminal complaint form, and allege that a crime has been committed against them and the magistrate would then issue a warrant. The warrant is sometimes marked as permitted or not permitted, where it can be served as a summons. But in the end, it's basically someone off the street saying, for instance, my neighbor, you know, punched me in the face. So I'm looking for an assault charge. It's a one sided hearing. The magistrate doesn't seek out evidence or an investigation, and typically, the magistrate has no reason to think that the person in front of them is lying. The guidance the magistrates have is upon probable cause for an offense, basically just being described to you under oath, you shall issue a warrant. So you can see the problem. Literally, and this is not hyperbole. If I wanted to go swear out a warrant against Taite right now, all I have to do is drive to the magistrate's office, put my hand up and say I swear under oath that Taite Westendorf punched me in the face. Here's his address. I want a warrant, and then he's charged with the crime. There's really no mechanism there for Taite, to then come back and say, Hey, I didn't do it, can you, you know, not arrest me, or can you not force me to come to court and go through the whole process. He's stuck it. He has to go through the process. The best that could possibly happen for Taite would be, he hires a lawyer, that lawyer wipes the floor with me, my complaint shows that I just made it all up. And he's found not guilty. It's still on his record that he was charged. So the next thing Taite has to do after paying probably 1000 bucks or more to a lawyer, is he has to go get that charge expunged from his record. It's probably going to be another 500 to 1000 bucks to do that. It's a long process that takes months and months. Anytime he applies for a job, the employer is going to typically ask have you been charged with crimes or they're going to do a background check, and it's going to pop up that he was charged. That's his best case scenario. And that whole process would take probably close to a year to play out. His worst case scenario is I go in there and I just straight up lie and say it happened. And the judge says, hey, I believe you, it probably happened, and I'm going to find him guilty. And now he's convicted of a crime. So the way it clearly should work is you have trained police officers and investigators who go out to a crime scene or investigate the facts behind an allegation of a crime and talks to different people and then makes some sort of judgment call on it and says, okay, well, the story doesn't add up, or it does add up. Or I consulted the prosecutor's office, you know, and even if we kind of think it might have happened, we know for a fact that we can't, in good faith proceed on this charge, because we don't think we can secure a conviction or we don't think there's even probable cause. So while in our heart of hearts, we think that something bad might have happened, you know, we're not going to put, we're not going to waste taxpayer money. We're not going to put somebody through the process when we know it's a futile endeavor. And like I said, I used to be a magistrate. So I'm sort of bashing my own roots. And I don't want to say I was part of the problem. I did the best I could to make fair decisions with the tools I had. But in the end, the guidance was you get somebody swearing under oath that something happened you, you shall issue the warrant. And there's not much to stop any Joe Schmo from walking into a magistrate's office and getting a charge. And we've had plenty of clients who have come in and said it was just Joe Schmo who everybody on my street knows is crazy going into the magistrate's office and making some completely outlandish allegation. What can I do? And the answer is nothing, go through the process. Let us defend you, let us try our best to get the case dismissed then go through the expungement process and they're baffled. How is this a thing? And it pisses us off. It pisses them off. Taite, does this piss you off enough to add to it?

Taite Westendorf:
Yeah, I'll give my two cents. Again, this is a unique Virginia thing. This is not a thing in most of the country. I think when we did the research, it was maybe two or three states had some version of this citizen initiated warrant process. I mean, we could sit here for the next eight hours and give you horror stories of what happened to our clients. We had last year Jon McIvor which got some publicity. This was a guy who worked for the city of Virginia Beach, he was in building two where the tragedy occurred. Where many of his co workers were shot and murdered. And he didn't want to go back into the building. And he had some spineless, scurred boy bureaucrat who got upset with him because Jon didn't want to go back to his workplace. And he went down to the magistrate's office and made a complaint. So this guy who's in his mid 40s, sterling work history, no criminal record, by all accounts, and I can tell you, personally, a very nice guy ends up getting handcuffs thrown on him and thrown in the slammer. And but for the fact that his brother happened to know us, he probably wouldn't have had a bond hearing for three days. Fortunately, and he only spent about 24 hours behind bars, and we got the charge fairly quickly dismissed because it was completely frivolous. It wasn't like it took any legal genius on our part other than saying, duh, this is a bullshit complaint. But I mean, it's insane. Innocent people get locked up all the time without the involvement of a police officer, prosecutor or judge, not a single law enforcement officer has to investigate or sign off on these things. It's bonkers.

Bassel Khalaf:
Yeah, Jon's a good dude. His boss was definitely a shook boy. So I'm glad that worked out, and he's ended up with a more favorable result than a lot of people who sit in custody for weeks, months, long ass time before somebody with a brain comes in and says, hey, this was kind of stupid that Joe Schmo off the street could charge you and you just sit behind bars. Alright, so that pisses us off. Next thing we want to talk about is mandatory minimums. There's some crimes, that at any crime is going to have some rules behind it. And usually, it's codified in the Criminal Code section of whatever state you're in. Some of them have a minimum sentence that can be applied to a person. So for instance, assault and battery on a law enforcement officer, if you're convicted of that, the best result you could get is six months in custody. If the judge says, you know, you just you blew on his ear, or the assault was, you know, you threw a spoonful of jello at the officer, whatever the case may be, it could be as minimal an assault as you could possibly imagine. You could literally shoot a supersoaker at an officer. If you're convicted of that assault on an officer, the best you can do is six months. So judges pretty much have their hands tied by the legislature, the legislature passes the law, tells the judge you can't give any sort of sentence that doesn't involve at least X amount of time and an assault on an officer is six months. And that's a lot of times. Six months is not just a walk in the park, it's not a slap on the wrist. Six months is a long ass time. It's half a year of you sitting behind bars. Clearly assault on an officer is not a good thing. And maybe in most cases it warrants six months or more. But that should be up to a judge to review the facts and fine tooth comb it, look at the background and history of the person who's charged, look at the all the surrounding facts. Maybe the officer had escalated the situation to the point where the defendant's culpability isn't what it typically would be in a assault on an officer situation. So that's I guess, the background. Well, what are your thoughts on this?

Taite Westendorf:
Yeah, well, this is unlike the first two topics we brought up. This one is definitely not unique to Virginia. There are mandatory minimum sentences all over the country in different states and at the federal level. And usually the way they came into existence was you've got that pendulum that swings back and forth between criminal justice reform, and we need harsher punishment. So there was you know, the 80s explosion in crime. 90s, there's this era of you know, quote, unquote, correction. And in Virginia, for instance, we abolished parole, the General Assembly passed a bunch of mandatory minimums. But at the end of the day, I think the reality and the data shows us they were nothing more than political stunts. So you've got an era where we want to be really tough on guns. So now it's a two year mandatory minimum for possession of a firearm by a non violent felons five years for a violent felon. And it's hard to make that counter argument in a political ad like, oh, well, then he's soft on gun violence. But the end result is exactly what Bassel just brought up. It's craziness. You walk into the courtroom. Sentencing is already an imprecise thing. But we at least make an effort to take into consideration the specific facts of that case, the specific background of that defendant, the specific level of cooperation they gave in the investigation with law enforcement, whether this person fits into a larger ecosystem of criminal activity. You try to take all these different things into consideration. Like what's their age, can they benefit from rehabilitation? Do they pose a danger? But we just take all of that off the table, all of these things that we're trained to consider at sentencing and we just say, the General Assembly said this is the number. They don't know jack shit about the facts of any specific case. And I can't tell you how many times I've had a judge say something to the effect of you know, I hate doing this, but it is what it is. And I gotta follow the law. Mandatory minimums are political stunts. Stupid.

Bassel Khalaf:
It's stupid. Those old bastards need to check themselves. There's a few layers of protection in the criminal justice system. And most importantly, you got a prosecutor who screens the case, and to tie their hands and say, no, you can't, I mean, short of changing the charge itself. They can't do much to help you on the sentence if there's a mandatory minimum, at least not below the mandatory amount of time. And then to tie the judges hands on top of that and say, Hey, you know, I know that you're all trained professionals who deal with this on a daily basis, but you know, we're just going to as sort of an abstract concepts say that this type of offense should never be punished below a certain amount. It's a race to the bottom. Politically of a bunch of people who want to be more tough on crime than the last, and I propose a mandatory minimum on whatever and whoever opposes me is soft on crime and that's not me, I'm super tough on crime and you get these stupid results. Pisses us off. Felon in possession of a gun, they shouldn't have a gun. But if you start talking about any violent felony, breaking and entering is classified as a violent felony in Virginia, which is also stupid. That should be one of our topics. But that person is getting five years. Five years is a long time. And I know a lot of people would say, well, felons shouldn't have guns, and I don't disagree, but five years as a mandatory sentence is outrageous.

Taite Westendorf:
Well, and this is a whole separate topic, but there are so many freaking felonies and so many that have nothing to do with violence or dangerousness. The idea that we should just strip away Second Amendment rights from any person convicted of a felony.

Bassel Khalaf:
I agree. Yeah, certain felonies definitely. But technically, you could probably get your first felony as a felony failure to appear.

Taite Westendorf:
Yeah. Anythig. It could be a grand larceny from Target. Petty larceny third.

Bassel Khalaf:
Yeah, I stole a PlayStation. Now, I don't have my Second Amendment rights, which is interesting because the gun people don't seem to speak up on that one. Do they?

Taite Westendorf:
It doesn't seem like a whole lot. I have seen I think some NRA. Is it Amicus or Amica? I always don't know the proper pronunciation. The NRA has filed some amicus briefs. I think in some of those cases, there's been a couple victories on the fringes on the felon gun rights and the constitutionality issue. But that's a whole separate topic. You did bring up race to the bottom, which made me think of lawyer advertising. And that's one of those things, it's obviously not a law that we would want change. But now that we're in private practice, lawyer, advertising is one of those things that aspects of it really pissed me off. So it kind of fits into our topic. And so when you bring up race to the bottom, this is sort of a game theory concept. But let me give you a very specific example that we've been critical of which is lawyer awards. So let's say we've got 10 criminal defense attorneys, and we're all fighting over this pie of criminal defendants who are looking to hire private counsel. So if it's evenly distributed, we're each getting 10% of that pot. So let's say one of these criminal defense attorneys figures out that we'll look, if I put up that I'm an award winning criminal defense attorney, and I've got some little gold ribbons, and top 40 under 40, super deluxe, ultra sweet lawyer on my website, it increases my percentage of the pie to 15%. So everybody's else's percentage goes down a little bit. But then they kind of catch wind of that strategy, and then one, and then another, we all start adding these little lawyer awards and ribbons that we're paying for. And we all know that there's no legitimacy to them, that they're deceptive to the public at best. And we know that we're losing a little bit of our integrity by doing it. But in order to compete, we've got to do it, we've got to pay for the award, we've got to put it on our website. And so over time, now all 10 attorneys have the fake award. Now we've redistributed the pot to 10% each because we're all on equal standing with our little fake gold ribbons. But we've lost our integrity in the process. So we're right back where we started minus a level of iron integrity. And that's really what the race to the bottom is because then it's okay, so what's the next thing I can do to get a leg up? And before you know it? The only limit is, you know, I guess human ingenuity as far as what little bs thing you can try to use to separate yourself from other criminal defense attorneys. So that's my rant on lawyer Ward's being bullshit in certain aspects of lawyer marketing really bothering me.

Bassel Khalaf:
Yeah, though, that one might warrant its own episode, but it's definitely a total crock of shit. And I say that as somebody who is not proud to be a top 40 under 40 lawyer

Taite Westendorf:
And and a super lawyer and a Cova Biz top lawyer.

Bassel Khalaf:
I think I'm Avvo 10.0 lawyer 10 out of 10. I've got everything and I didn't even ask for those things except for the Avvo one. I had to make a profile for that but you can't compete without those things and it sucks because we hate it. So our plan has been Alright, well, we'll take the awards because one, it helps our search engine juice on Google. We're getting kind of sidetracked on things that piss us off. But this also pisses us off. So I guess it's kind of on point, too. But yeah, there's so many disgusting things that people have to do. And some of the lawyers they are they wear it like a badge of honor? On the top 40 under 40. Okay, cool. But how many top 40 under 40 lawyers are there? Not 40, probably closer to 40,000. I mean, there's a lot, maybe not 40,000. But a lot, I mean, in excess of 10,000. So it's not a legitimate thing. And we get all the emails and letters, and it says, hey, you could buy a plaque for 500 bucks. You could be listed on this website that's gonna give you you know, some more Google juice for somebody who searches for lawyers in your area. It's a pain in the ass that we have to be in this muckety muck. And the State Bar regulates so much are so many things that attorneys can do, but for some reason they are in Virginia and many other places. They're cool with this nonsense lawyer advertising, I think New Jersey came down on lawyer advertising, right? Well, the bastion of Hope is New Jersey.

Taite Westendorf:
The New Jersey one, I'm pretty sure they shat on it really hard, but ultimately said there's some criteria. I think that was for Super Lawyers specifically where they kind of acknowledged yeah, it's deceptive. But they've got their little, it's not just totally made up. You can't pay your way in, at least for Super Lawyers. You can't just say, oh, here's 500 bucks, I want to be a super lawyer, you have to be selected. Of course, the nomination process is just a total circle jerk. Where if you're in a big law firm, 15-20 of your fellow attorneys nominate you. So it's a clown show, but at least it has this very thin veneer of legitimacy.

Bassel Khalaf:
Yeah, a big firm will throw a party and free alcohol free, you know, food. And then part of the program is, hey, here's some cards, vote for us. Here's all the information on how to vote for us as the top whatever. So everybody who goes to the party feels kind of obligated. And they're dope parties. I've been to some of them. If the problem is, you know, you're buying votes, it's a scam. It's ridiculous. It pisses us off. That wasn't one of the topics that we had on the list, but it kind of should have been. So I guess the other two we got our bond presumptions deferred findings. Shoot, which one you think? Bond presumptions is an easy one. There's some charges when you're arrested. If you are found to be a danger to the community, or a flight risk, then you have conditions imposed upon you by the court. If there's no combination of conditions that can ensure your appearance in court, or that you wouldn't be a danger to the community, then you're held without bond. And that should be a very rare scenario in Virginia. It's not we see on the all the time on the news, like oh, sniper kills 10 people. And he gets a bond for 5 million bucks, which you can't post of course, but at least he got a bond. And then you see in Virginia, it's like, well, you have a failure to appear and you stole from Walmart. So you don't get a bond. It's just, it's a little strange. But the presumption part of it, is there are some charges where if you're charged with those offenses, you are presumed to not be bondable. The biggest problem with that is you're also presumed to be innocent. So the law is saying, okay, we're presuming you didn't do it, but we're also presuming that you're a giant danger to the community, because you did it. So those things are in incongruent. Is that how you'd say?

Taite Westendorf:
Yeah, it's that pesky presumption of innocence, right? There's a whole slew of charges in Virginia, basically anything that's defined as a violent felony, there's a presumption against bond. And I've always had a hard time figuring out how you can square that with this bedrock principle of the presumption of innocence. And I suppose the, in my opinion, really limp way that appellate courts have treated that is to say, Well, you know, even though it says presumption, it's actually not really a presumption, it's a rebuttable inference. Whatever the fuck that means. And it's a much different concept than a presumption. Get the hell out of here. I mean if you try in the courtroom to say, well judge it's a rebuttable inference. They're looking at you like, shut the fuck up. Anyway. So that's that's a clown show. Way more people should be getting released on bond. That's the bottom line. I think COVID really exposed a lot of that. Because at least the local courts as far as I experienced, they were being much more liberal with releasing people on bond. And my observation was not that there was this drastic increase in people not showing up for court, or people offending when they were out on bond. Nothing changed, the court system went on as normal. And it was almost just an acknowledgement during COVID that, yeah, we're holding way too many people than we ought to be. Like, don't get me wrong, there are certain people, if you got a record for murdering people, and you're charged with murder, you probably need to stay where you at. And that's an extreme example, but there certainly is a segment. But the percentage that we're keeping locked up, it's entirely too high, especially when we have mechanisms for monitoring them, whether that's, you know, pretrial services, or GPS monitoring, or whatever the case may be. And I really do think at some point, we got to take a long look in the mirror and say, I mean, does the presumption of innocence mean anything? Or is it just sort of a gimmick slogan that we use to say our system is super enlightened and the best in the world, but we don't actually adhere to it.

Bassel Khalaf:
We we've had plenty of cases where the person is charged with something pretty serious. There's a presumption against bond but their background facts are as perfect as you could possibly get. And it becomes this person has no failure to appears on their record, they've lived in the area for since they were born. They have a job, they've got stellar references from whoever you might ask about them. And the evidence is kind of flimsy. I mean, you could point all those things out. And then the final argument you make to the judge is, if this person is not bondable, then I don't know who is. So basically, this charge would be a per se, you shall not be bonded situation, and that's unconstitutional. It's not supposed to be like that. But I've made that argument probably over 20 times, and probably half of those times I get shot down. And it's true, though, if you're not bondable, when you got no failure to appears, you got strong ties, you got everything stellar except for the nature of the charge, then it's not a presumption against bond. It is a you shall not be bonded. And some of the judges I have to say their problem ends up being, oh, I don't want my name on the sheet signing off. If that person gets out and kills somebody and the media looks into it, it reflects poorly on me. That becomes an intestinal fortitude issue with the judges where they have to say I'm a professional and I need to be able to actually apply the law, consequences be damned, and you can't control the weather. Yes, this person might do something bad. But that's not how our system works is the off chance that something bad might happen. You shout, this person shall not be bonded. Pisses me off.

Taite Westendorf:
Yeah, just a last few sentences because you made a good point that I wanted to elaborate on, which is the political pressure that judges face. Because the reality is, if you keep a guy in when you shouldn't have, that's the one mistake you can make. But there's no political blowback. Because if you hold the guy when you shouldn't have, he's just sitting in the jail, he's not committing crimes, there's no risk to the judge. The only risk to the judge is releasing a guy who might then go out and commit crimes, and then you get blowback. So I do appreciate that judges are in a bit of an awkward spot there where they probably err on the side of holding people. And so I do wonder if there's a way that we could encourage that not to happen. And one of those things that's been tossed out is bond decisions made purely based on algorithms and things like that. So you're almost taking human judgment out of it. Or at least you give the judge political cover where they could say, well, the algorithm said that I should release him. And we've been strongly encouraged to follow the algorithm or whatever the case. I'm talking out loud.

Bassel Khalaf:
Yeah or the public could wisen the fuck up and realize.

Taite Westendorf:
Good luck with that.

Bassel Khalaf:
You'll get some situations where something bad happens, but it can't just be like, Oh, this guy has been convicted twice of things. He got out a third time and did a thing. Oh, my gosh, that's so outrageous. I mean, those things happen. And we can't just lock people up forever. We've seen it with judges where it'll be, say, a heroin addict. And the person has a program in place. They've got all the incentive to do well while out on bond in a program where it's inpatient, even a lockdown facility. And the judge says, Well, if I let them out and they sneak out of the program and they OD and die like how can I sleep at night. And then I say, well, you should sleep just fine. What's your alternative Just lock this guy up forever in a cell with no program and hope that he just sees the error in his ways. That's not a thing. So we just need an element of realism  to be put into the equation. That goes for the judges, it goes for the public who might scrutinize these things. But yeah, in the end, it is the people are just a bunch of, I don't know, p words who...you know, I don't want my name on that. Get out of here, get a new job, you little bish. The last thing we had on the list was deferred findings, which we're pushing our limits here, but we're gonna do it right real quick. Deferred finding is pretty much a giant continuance where the judge says, Hey, I think you did it. You probably did it, but do things over the next six months, a year, whatever the case may be, and I'll dismiss the charge. Marijuana has that. Even heroin has that.

Taite Westendorf:
Domestic assault and battery, certain low level property offenses, trespassing, misdemeanor destruction of property.

Bassel Khalaf:
Yeah, and that's for Virginia. I'm sure other states have other ones. But yeah, the most common one ends up being either the domestic assault battery one where you got to be good for what two years years, you will probably do a batterer's intervention class at the discretion of the judge.

Taite Westendorf:
The most common one is obviously for drug offenses.

Bassel Khalaf:
Yeah, so I've got no record at all, or I could have a record, I have no drug offenses on my record, and I get jammed up with heroin. The judge could say I put you on first offender, do 100 hours community service, have your license suspended, piss clean for a year, and then it gets dismissed at the end. That's a great thing. I'll throw it to you on the other side of the coin.

Taite Westendorf:
The other side of the coin is that this has been from before I was an attorney, this has been a matter of ongoing controversy. As far as what charges you can do deferred findings on. The General Assembly, like we were just explaining, has set out very specific conditions for deferred findings for certain charges. But they've been silent on other charges. And so the way the Court of Appeals has interpreted that is to say, Well, you can't do a deferred finding unless the General Assembly has set forth a deferred finding subsection that allows for them on that specific charge. And so without even getting into the legal nitty gritty of whether I agree with that legal analysis, because that would take two hours by itself. I would say my short argument against it would be that Virginia's a common law state. Clearly deferred findings were a thing at common law. So unless the General Assembly has specifically said you can't do them, I think we ought to be authorized to do them. But the Court of Appeals obviously hasn't agreed with me on that point. But anyway, what we endorse is expanding the scenarios in which deferred findings would be allowed. And the reason that's a really good idea is that for a lot of these crimes, we don't want the person to walk away with a criminal record that's going to keep them from getting a good job, keep them from getting a scholarship, something that's going to, you know, jeopardize their future and prevent them from reaching their full potential for something they did when they're 19-20 years old. I don't think I'm alone in saying that I would hate to be judged by the person that I was in my early 20s or late teens. For juveniles, we have basically free rein to do different findings. And we do them all the time, both by agreements with the prosecutor or sometimes we'll argue it to a judge. They can do it even for violent felonies, there are essentially no limits in juvenile court. But then the moment you turn 18, boom, done, no deferred findings. In my opinion, at a very minimum, a good starting point would be to say for any non-violent offense, including felonies, deferred findings are at least allowable and then leave it at the discretion of judges, leave it up to defense attorneys and prosecutors to hash it out and come up with plea agreements if it's appropriate.

Bassel Khalaf:
Yes, that's doo doo butts. So the idea that we're going to take away flexibility to negotiate outside of this idea that jail or prisons are the only way to treat a problem is ridiculous. I mean, you could make it so the fact that he was charged, always shows up on the record, in the sense that it's non expandable. That'd be one mechanism to at least say hey, you're disincentivized from from committing crimes, and if you end up with some first offender deferred finding situation where you have to clean up trash or serve the community or take classes or do something wonderful where everybody wins, at least there's some record of it. That could be a thing. But in the end, the way the courts have interpreted the whole situation is unless you're explicitly allowed to have a deferred finding, you're not getting a deferred finding. And again, that's one where the Court of Appeals might need to check itself because. Well, the Supreme Court could have checked them and sort of declined to do so.

Taite Westendorf:
Yeah, they've played that game of tennis multiple times where the Supreme Court sort of in very vague terms seemed to endorse deferred findings without just outright coming out explicitly saying you've got the authority to continue a case on conditions towards a dismissal. They've never said that.

Bassel Khalaf:
Yeah, we were hoping that the Supreme Court would, you know, lay the SmackDown on the Court of Appeals, and in one particular instance of a string of deferred finding type cases that came about, but they didn't, for whatever reason. It would have been a beautiful thing.

Taite Westendorf:
One last quick point. So Bassel had brought up maybe the idea of making them non expungeable. But here's another idea. How about if we're not going to allow deferred findings. How about more liberal expungement of charges? If 10 years have passed since you had a grand larceny from Target, does the world need to know in perpetuity about it? I don't think so. Let that shit go away. Maybe a longer time period for felony charges. A lot of states have mechanisms like that. Virginia doesn't. We get calls all the time from people who will say things like I had a felony conviction 30 years ago, can you help me out? The simple answer is nope, can't do it.

Bassel Khalaf:
Yeah, that pisses me off, too. And a last point on the last point you made would be as far as expungement, is we get cases. We could do a whole podcast episode on guidelines. But the way it is with guidelines, it's a recommendation to the courts of what your sentnce should be based on data from all across the state. And people in similar situations have received this range of punishment, blah, blah, blah. But we get people who are in their 60s and 70s, who are charged with a crime and it's like, Ah, man, back in the 80s, I had this breaking and entering or I had this robbery conviction. And then I was squeaky clean from there on out. But the guidelines don't care. They don't take into account how long ago that conviction was. You become a category one, category two offender. And once you're in that range, your guidelines get jacked. So they go double, in some cases triple. It's very harsh. And it's sort of this thing where the legislature hasn't fixed that. And they're basically, I'm sure their reasoning would be we haven't fixed it because we have judges who can make great decisions and factor that in. But at the same time, it's like, well, you also are the people who impose mandatory minimums for offenses. So figure out your shit. Anything else?

Taite Westendorf:
There are many things that piss us off, but right now we have to jet off with Jared Kushner to solve Middle East peace now that we solved racism and we solved criminal justice system reform in this one so now we've got to move on.

Bassel Khalaf:
Yeah, we do hate a lot of stuff. We're definitely some haters. Stay off our radar ya bish. Anyways, I guess that's about it. So till next time, peace.