SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_02 0:32

Hello, everybody. This is John Katz. I'm a criminal defense and DUI defense lawyer in Northern Virginia. In Fairfax, this has Beat the Prosecution. I'm delighted to have Brian Kennedy as my guest here today. He's a senior public defender in Fairfax. I'm going to tell you something, no offense to uh uh Brian, but uh I had asked uh someone else who has some political viewpoints, someone of mine, Brian might also, at his office, said, Come on the podcast. Well, actually, one of the reasons I'll share this with you. Uh, I wanted some gender diversity, which I've finally gotten. I think I'd only had males then. And she said she wanted to keep a low profile. So without further ado, uh Brian doesn't keep a low profile, do you, Brian? Please introduce yourself to the audience.

SPEAKER_01 1:21

Sure, I'm Brian Kennedy. Um, yeah, my day job, I'm a senior assistant public defender in Fairfax. I've been there about 13 years almost now. Um, so I do training of new lawyers, I supervise our new newer lawyers, and I have my own serious caseload. I think something that'll also come up. I'm a board member at an organization called Justice Forward Virginia. Um we're a nonpartisan organization that does criminal legal system reform work in Virginia. Um, so we do a lot of different things. We do education work, um, we do things like expungement clinics, but we also spend you know some of my time on developing new statutes and lobbying the General Assembly to pass those statutes. And we've had some pretty decent success over the past few years at doing that. So I do lots of different things that we'll talk about, I'm sure. Um, but yeah, that's me.

SPEAKER_02 2:15

So what brought you to this path to be a public defender lawyer, to be a lawyer generally? And uh what were you doing before you joined the public defender's office?

SPEAKER_01 2:27

Yeah, I um did not want to be a lawyer. I never thought that that's where I'd end up. Um in college, I worked at an organization that did low-income, basically ESL tutoring for immigrants, uh, recently arrived immigrants and their children. And one of the things that happened while we were doing that program is a lawyer who worked for an organization, wonderful organization called Ayuda in DC and Virginia that does immigration work candidates. Um, and I basically said, actually, I think I want to, I thought I was gonna do international affairs. And I said, I can do that basically right here in the United States. Um, I'm an immigrant myself, so I thought I wanted to do low-income immigration work. So I went to law school with the thought about doing that. That was my first internship was at Ayuda, um, working with people who needed immigration help but didn't have the money. And one thing I kept seeing over and over again while I was working um with that population was that people were in big trouble trying to get immigration relief because they'd had really pretty low-level criminal offenses and their lawyers didn't know what to do. It was right around the time Padilla came out. Um, so that was all pretty new. And I said, Well, what if I can help the same people before they get to the immigration lawyer not have a bad time because they have some petty larceny or whatever on their record that's going to prevent them from staying in the country? So I interned at a public defender's office in Alexandria, Virginia, um, fell in love and decided that's what I wanted to do. I did a clinic in law school. I was in DC Superior Court with that. Um, didn't get a public defender job in the bottom of the Great Recession when I graduated from law school. Uh, so I clerked for a judge on DC Superior Court, and then I got a job in Fairfax halfway through my clerkship. And my judge, who was a former public defender, was kind enough to let me go. So I have been here ever since, basically, um, working in Fairfax at the PD's office.

SPEAKER_02 4:24

Where did you go to uh undergrad school? Where did you go to law school?

SPEAKER_01 4:29

I went to Georgetown University for both um undergrad and law school.

SPEAKER_02 4:34

And which judge were you clerking with on the DC Superior Court?

SPEAKER_01 4:38

Uh Judge Michael Ryan.

SPEAKER_02 4:42

So you're an immigrant from what country?

SPEAKER_01 4:45

Uh I was born in Ireland. Um all my family's from. We moved over when I was pretty young. Um, we had a few people from my family were over here. Um, my dad's brother and his family were here. Um, but my parents moved to New England and they didn't have anybody closer than Philadelphia. And we, you know, my parents were great and they raised four kids here.

SPEAKER_02 5:07

So you having been at Iuta and the way you pronounce it, I take your Spanish is pretty good.

SPEAKER_01 5:13

Uh it's it's pretty good, yep. Um, I studied Spanish in you know school and college and studied abroad and um use it every day. So it's you know great.

SPEAKER_02 5:25

It's my third language, and I improved it a lot. Uh uh, French is my second language with my former law partner Jay Marks, who's a great immigration lawyer. He speaks Spanish better than most uh uh Latinos, probably. And we had a we had a radio show from 1998 to 2000 on the old uh uh Radio Omega, La Mega Cepega, legalmente hablando, donde su causas, nuestra causa, legally speaking, with your where your cause is our cause. And push came to shove. We had our first uh criminal defense uh show, and Jay was interpreting left and right between me and the callers, and some of his friends said, Hey Jay, I thought this was a Spanish-speaking show. So that forced me to do the Spanish better. Uh, plus one day uh we start off by only hiring bilingual Spanish English legal assistants. So one day I'm speaking to my client and I said something along the lines of, you're a liar, and I'm exaggerating a little bit. And my uh assistant said to him something like, John likes your tie. And I said to him, I didn't say that. I said, I'm gonna continue this discussion. You just tell me if I say anything wrong. That took place over 20 years ago. So those those were two of the defining moments. I think the the most defining moment was when I was speaking to a friend of mine in Juarez. I was interviewing at the New Mexico uh the uh Las Cruces, New Mexico Federal Public Defender's Office in 1994. To uh, it's a good thing I didn't do that. I would have hated the snitch work. We're gonna talk about that. And uh uh so I finished with that interview and I was meeting my friend over in in Juarez, he was a lawyer there, and he starts speaking to me in in Spanish really rapidly. And uh I said to him, I'm not ready to do this in Spanish, and he said, Juar okay, why? And the flood just came out. I mean, I I'm really saying this uh for the help of of our uh criminal defense lawyer friends who know Spanish and other and other languages and just timid about doing it. I mean, uh the first time I really started yap, yap, and another language was when I was in France to study there for the summer when I was 15, and I realized I had to speak French in a cafe if I didn't want to be served horse meat. Of course, I didn't know it was horse meat anyway. But this is a I I want to get back to you. Um, how many people, how many lawyers are there at the Fairfax Public Defender's Office, and how many support staff, including how many investigators and mitigation specialists?

SPEAKER_01 8:03

So, right now we have 26 lawyer positions. We have 25 that are um occupied right now. So if anyone listening is interested in becoming a public defender in Fairfax, go to the Vadefenders.org and look for jobs. Uh application will be probably up soon again. Um we have four investigators, four mitigation specialists, five legal assistants, and an office manager. I think that's everybody.

SPEAKER_02 8:36

Okay, now so you have how many mitigation specialists?

SPEAKER_01 8:43

Four mitigation specialists.

SPEAKER_02 8:45

And that's for assisting just with uh uh both what is it, sentencing and pretrial release? Is that two of them? Do they assist with anything else?

SPEAKER_01 8:55

So three of them focus mostly on um felony sentencing. So they write, help us write mitigation reports, uh, sentencing memos, um, mitigation packets. For a jury trial, they'd help kind of wrangle witnesses, make sure that we have our sentencing case set. One of them focuses on moral re-entry work. So people who are either getting out of their sentence or out on bail, connecting them with community organizations, treatment, as best we can do with that. That's a new position that we have. They also help us, you know, things like competency, sanity. Um, many of them have background in forensic psychology. Um I think three of them have masters in forensic psychology. So they help us in a lot of different ways, both kind of formally being assigned to the case and then informally being able to advise us on expert witnesses or uh programs or other options for our clients.

SPEAKER_02 9:53

Okay, so your office has uh all those resources. Uh, and so what allied resources do the court-appointed private practitioners have then? Do they have access to mitigation? Uh see, I think I guess I see that already. Do they have mitigation specialists? What do they have other than when the court uh throws them a bone and says, okay, I'll pay for an expert, and then goes ahead and picks apart their uh voucher?

SPEAKER_01 10:18

Yeah, the I mean, the people who do court-appointed work in Virginia right now are real heroes in a lot of ways, because in some jurisdictions they're the only people providing indigent defense. And in the jurisdictions like ours, where there is a well-resourced public defender's office, there's still too much work for us to do, and there's conflicts that we have, and all sorts of other cases that we just can't take. And when they get a case, they have no investigator right there. I mean, I don't have to do anything other than fill out a form or walk upstairs and talk to our investigators or walk downstairs and talk to our mitigation specialist. Someone who's doing quarter-pointed work would have to ask for expert funds for an investigator. And I've definitely seen people do that. Um, but we have a wider variety of cases. We have a high volume, so it's probably the same level of case, but we have easier access to that. I'm sure if most people went in on a low-level robbery and said, I need an investigator, they might not get the expert because they have to ask the court for it. And mitigation specialists, you know, in the old capital system, you're able to get mitigated court-appointed for court-appointed work. But I can't really think of many times recently, I don't know if you you know of any, John, where someone's been able to ask for a mitigation specialist. I don't even know where you'd find one to help you on a felony case like we have assistance on our cases. Um, so court-appointed lawyers are getting have to do more work for no money, um, getting a little bit more money soon. But you know, I'm sure if you put in a voucher for the real work it takes to write a real to write a 30-page sentencing memo, that can take hours and hours and hours of research and interviews and drafting, um, pictures, all sorts of things that we put in. Right. If you try to put in a voucher for that, I'm sure it would get cut immediately. Um asking why you spent 50 hours on a plea. You know, this is a plea, you get your the minimum amount, or maybe slightly over that, when really it was a complex sentencing case. Um, we haven't figured that out yet in Virginia. And I think the Supreme Court is increasingly stingy with vouchers from court-appointed counsel, um, even if they are approved by the local judges.

SPEAKER_02 12:32

I want this uh discussion to be an opportunity for you uh to include uh promoting um uh public defender work, including your your office, and also uh justice forward. You want to move to justice forward at this point and to uh maybe tell their website and and uh maybe some of the key stuff that they're doing and why you're involved with them?

SPEAKER_01 12:54

Sure. Uh Justice Forward started in we started really the idea in 2016-2017. Um, the idea back then was that the Virginia Commonwealth Attorneys Association, which I may call Vaca as we go, that's the acronym, which was the organization. Yeah, well, we'll stick with Commonwealth Attorneys Association. Um, basically it was an umbrella organization for all of the elected Commonwealth Attorneys in Virginia, and it was very powerful, it still is a very powerful lobby group down in Richmond. Because regardless of whether it was Democrats or Republicans, for a long time, they all basically got together and decided here's how we're going to change the law in Virginia. Oh, I lost the Court of Appeals case, a judge did this crazy thing. It would be easier if we did this. I had a case I couldn't charge. And like most legislatures, um, you know, Virginia's not unique in this way. Prosecutors are listened to by their legislators in their individual localities or just statewide. People, you know, took vodka seriously. And for a long time, they had allies in the General Assembly, and it would be whatever VACA wanted was passed. For a lot of reasons, there wasn't a good counter to that. Um, it was no one's fault. There were a lot of structural reasons for that for people in the system, but we thought it would be good to have a non-governmental group of people who weren't constrained by their job or by lobbying restrictions to start to counter VACA and maybe say things from a defense perspective or at least from a criminal legal system reform perspective, which aren't necessarily always the same thing. So a few of us started that group. Um, not everyone had been a, not everyone had been a former public defender when we first met, but I think almost all of us were, um, whether we were in our day jobs were in public defense or in private criminal defense. And it was really, I mean, for many, many, many years, it was just four, five, six, seven of us at most, um, just messing around. We had to learn how to write a bill. We had to learn how to get a sponsor for a bill, how to get it passed. And for years, we were not successful, um, either by ourselves or in the kind of nascent coalitions that were growing around these areas in Virginia in kind of 2016 to 2020. I think we maybe got a bill or two passed, or maybe through one chamber. Um, 2020 happened, and to trigger everyone's trauma from that time, in addition to the pandemic, there were very high-profile killings of people by police. There was a big kind of racial reckoning in this country where people for at least a few months were trying to grapple with the history we have um of racism and of kind of structures built around that, including the criminal legal system. And the combination of those things led us to have a really bold agenda in 2020, 2021, um, Democrats to control the General Assembly during that time as well, which gave us a little bit more receptive audience. And we were able to pass a lot of bills, um, both by ourselves or support others who were doing really great work, and we were all working together to try to make things better. Things like ending mandatory jury sentencing, um, changing the presumptions against bail, um, creating degrees of robbery. You know, we helped support others who were doing um increasing funding for indigent defense, others who were doing work around um expungement and sealing laws, or legalizing marijuana, supporting the people who were doing that. So we're able to support others who were leading the work in a lot of those areas, providing kind of technical assistance on how things work in court, because we knew that, and that was an unfilled role, which I think was one of the more important roles we had, and then bring some of our own bills. Um, we've been fortunate where we've been able to expand our board of directors um to include other perspectives, which has been wonderful. We've also been able to get some funding to hire full-time staff. We have a full-time executive director and a part-time communications director, um, who are wonderful and has had made the work sustainable because it was not sustainable for us to all have two jobs, um, you know, one during the day, which is already quite busy, and one at night. But my plug will be um our website is justiceforwardva.com. That's the word justice, the word forward, the letter V, the letter A.com. Um, we have a C4 organization and a C3 foundation as well. The foundation has a different website, but we would love anyone who would be willing to make a donation for us to continue our work because the paid staff, again, is what makes it possible. Um, so that can either be a um tax-deductible donation to the C3, depending on how you do your taxes, or um to the C4. And both of those are really important. We are happy to receive donations to either, but the C4 lets us do our lobbying work, um, whereas the foundation lets us do our education work. Um, but they both help make sure that there's someone who's paid and not just volunteer advocating for these positions in the General Assembly every year or doing the education work throughout the year.

SPEAKER_02 18:15

Um, I'm happy you mentioned the difference between C3 and C4 because I I just have a general distaste for giving money to politicians unless it's really justified. So you're saying that I can give to the uh which organization can I give to if I don't want it to be uh uh money donated to the uh to the politicians?

SPEAKER_01 18:35

So we um neither the C4, three of the C4 donate to politicians. That a PAC which we used to have, the pack is not active anymore, so we don't donate anything to politicians anymore. Um the C three goes to education work and um things like expungement clinics. Um the C4 goes to our ability to go and lobby people in the General Assembly to make changes in the law. Um C3s aren't allowed to do that, so that's separate work, separate people. Um the C4 allows us to do that. So depending on what you want the fund, either again, either is funding organization, either is funding really great work. Um, as the treasurer will say, especially um recurring donations, monthly or yearly donations, are very helpful for predictability, but one time is great too. Um, so either way, but the C4 lets us do our lobbying work, the C3 does other work.

SPEAKER_02 19:26

To what extent was Justice Board involved in the efforts to unseat the uh the the last uh uh the the last uh chief prosecutor over in Arlington who was replaced by Parisa Degani Tafti?

SPEAKER_01 19:43

So back then, so those were the 2019 um Commonwealth Attorney elections, back then we were more involved in electoral politics. We are not really involved in direct electoral politics anymore for a variety of reasons. Um, but back then we were. And I think really what we took back then our role to be is trying to educate people in Arlington, especially, but also Fairfax about what was going on in the courthouse. That was a unique moment where people were looking at prosecutors and prosecutor elections. You know, John Oliver in his show had a whole show about look at your local prosecutors. People were um interested in that. The ACLU had websites all over the country about it. So we thought we needed to do work on a local level. And the people who know what are going on in courthouses are the people in courthouses. Um, the local politicians might not actually know, or they're taking their cues from the prosecutors. And obviously, everyone's gonna say everything's going great in their office, and we're not doing anything that's abusive to criminal defendants. We're not doing anything that's out of line here, we're very progressive. And in that election, who was a progressive prosecutor, um, whatever that word means, was a was important, and who is basically taking more liberal, progressive, um, non-reactionary stances, whatever we want to call it.

unknown 21:03

Right.

SPEAKER_01 21:03

So we had a website at the time that did, you know, kind of the informal political um scorecards. We were basically like, how are things, you know, comparing Arlington to Fairfax to what the ideal might be from our perspective, which was a more just is probably not the word because I'm not sure the system can ever be just, but it's a a less a more humane um system and a less abusive system to people who are charged with crimes. Right. Um, and a more at least fair in the in a due process sense. Um, so we were judging that and making sure people knew what was actually going on on the ground. So that was kind of the role we took back then.

SPEAKER_02 21:45

Um I'm not gonna name names here other than uh people who are listening, they they'll know who was unseated. But you know, that unseating uh of uh in the primary of the incumbent uh Democratic chief prosecutor in 2019. In Arlington reminded me of uh something uh Ralph Nader said to me. Ralph Nader spoke at my law school when I was in my first semester, first year back in 1986. And I said to him, So, what do you make of um uh the situation where if we're trying to do uh good for the world, we have all these yippies, the former hippies who become yuppies. And he knocked me down just right. He almost took me by the collar figuratively and almost said, Did you hear what I just said five minutes ago? Some major piece of legislation, I guess consumer legislation was created by two guys just sitting down at their kitchen table writing the legislation. What spurred this unseating of the chief prosecutor over in Arlington? Well, in large part it was by Brad Haywood, and I don't know who else put together uh the letter to the editor in the Washington Post andor the petition. And a lot of Laura's joined in it uh to say things are not all hunky dory here. And it was interesting because I spoke to one or two people who signed off on this letter or petition to keep the incumbent, and one of the people said, I like this current uh chief prosecutor. So I won't go into there. She's not going to be coming back. But something more to the point, though, uh, and you'll tell me if you want to touch this or not, is we we did have two district court judges uh be unseated a year or two ago, more or less, over in Fairfax. Uh, I was not in favor of it. If they were doing anything that merited being unseated, other than being gruff, I didn't know about it. So if if if there was something racist that they were doing or demeaning, that that's that's one thing. Uh and and there was a uh, you know, the person who was at the forefront of trying to uh get them unseated talks about how uh, well, you know, they shouldn't even be able to sit as a uh substitute judge because they've been unseated by the legislator. This gets back to something, Brian. I just don't have enough faith in legislators. So do you is this too much of a hot button issue for you to talk about? You know, it's it's not necessarily such a great thing to say, oh, let's just have judges who smile and and and who have an even nice tone of voice versus judges who maybe don't yell, uh, but judges who don't smile as much, but dispense better justice for the criminal defendants.

SPEAKER_01 24:28

So I don't want to talk about the specific situation that you're referencing, but I I I will talk about two of the things that you said. I think judicial temperament is really important. And it's important, I think, for a few reasons. One, all the study, the first study I read in law school, before we read a case in law school, our it wasn't called civil procedure, but our civil procedure professor has basically read a case that said, if people, a study that said if people think they're being treated fairly in a courtroom, they have at least a perception that they were heard, that they were listened to, that their lawyer was listened to, that everyone was listened to, and then a judge made a ruling, and the ruling seemed to relate to the things people were talking about. Um, everyone walked away, even if you lost, feeling a lot better about it. And I mean, I certainly have felt that way in a courtroom where a judge doesn't let me talk and rules against me, and I'm I rate because I think I could have convinced you that's why they pay me, right? To convince judges of things. Um so I think it is important for people who become a judge or people who remain judges throughout their careers to be able to treat people in a way that is respectful and at least with the solemnity that most people going to court need, right? You're losing your liberty, you're losing your immigration status, you're losing your occupational license, you are losing your house, you're losing your company, you know, you're losing your kid. All these things could happen. And I think if people don't treat it people well in court, it can be a problem. Um legislators and the the way we do judicial elections in Virginia is really interesting, right? I think we're only one of two states that does it the way we do it. It's not an appointment by the governor or having a kind of judicial council or something to do re-ups. It's not direct elections of judges, which I think is an awful idea. Um, I think having the General Assembly do it is a really bad option, except it's better than all the other options in some ways, right? If we had a governor in Virginia who got to appoint every judge, the governor could be from anywhere, right? And Virginia is a like every state, it's a really diverse place. You know, so if you had a governor from one part of the state, how are they learning what type of special interests are going into the governor choosing all the judges? Other parts of the state, the way they do it, right? They have a whoever the most senior legislator is just picks the judges. And then when they lose, the next guy picks the judges and kicks out the other judges. That's not great, but that's how other parts of the state do it. In Fairfax, again, the maybe not the best option, but I can't think of a better option on the system we have, they all get one vote. So you have, and we have a lot of legislators, so it's not just one person, and there's a little bit of politics. Um obviously, anytime you have politicians picking judges, it's going to be political. But judging is political. Every we want to say judging is some type of impartial exercise, you know, going back to natural law, they're just pulling it out of the air and divining what God thought the law to be, right? That's not what they're doing. They're imprinting their own policy preferences on some words in a statute and determining how they want it to come out because we've all lost cases we should have won, and one case is we should have lost, and we've all read a statute and had a lot of training, right? And been like any idiot can see this means this, but then all of a sudden, may means must and must means may, and everything gets turned upside down. Um, so it's going to be political either way. And when politics come into it, emotion's gonna come into it, and the heat of the moment's gonna come into it, and whatever interesting issues going on at the time is going to come into who becomes a judge. Um, the good thing about the Fairfax process, I think, is in terms of selecting who becomes a judge, is that there's a lot of layers, right? There's bar associations, multiple bar associations evaluating people, legislators are evaluating people, the interviews are with the legislature are open, um, people are kind of submitting written applications, people are talking about it, people can advocate to their own legislators who they think should be on the bench. That's all good, especially when they take lawyers seriously. I think the biggest problem now is 10 years ago there were a lot more lawyers in the General Assembly, and there were a lot more lawyers in the delegation. There's very few lawyers and even fewer lawyers who are practicing in state court regularly in the General Assembly right now in the whole body. Um, and that it's a problem for both writing laws and a problem for judges. And it's not just local judges, right? The Supreme Court of Virginia, um, something that's on my mind quite a bit recently. It seems like the only place we're gonna get new rights developed is under state constitutions from state supreme courts. I don't know how many new rights are gonna come out of the federal constitution um in the next few years or maybe the next generation. Um, so we really, and in Virginia, it's been a very underdeveloped area of law, which is what rights does our state constitution protect that go above and beyond what the federal constitution protects? Other state supreme courts, the Massachusetts Supreme District Court, the Supreme Court of New Jersey, the Supreme Court of Washington, the Supreme Court of Illinois, um, and many other Supreme Courts around the country are protecting other rights. Yes, not just hop on issues, but you know, New Jersey has a whole different, you know, Fifth Amendment, state, Fifth Amendment law that goes well above what Virginia or Virginia or the federal Supreme Court says. Uh Pennsylvania has all sorts of Fourth Amendment protections, you know, using search and seizure protections that we don't have. Um and we could have a Supreme Court that looked at our constitution and had them. Um even if you take an originalist view, right, of the rights people had in 1776 in a criminal case in Virginia, I think we're actually a lot more um for white people anyway, um, than they are right now. Um so however you look at it, whether it's however type of constitutional interpretation you're gonna do for the state supreme court, we could have a lot different rights here. And we can have more, but that need you need four people on the Virginia Supreme Court who are willing to engage in that. And we don't have that right now. Um at least not in a way that I think is gonna be beneficial for my clients. Um, but that's gonna be important for legislatures in the future, legislators in the future too. Who are you gonna choose? Is that someone who's in the status quo right now, someone who's in the pipeline right now, or is that gonna be someone new who has new ideas? Um that's gonna be, I think, interesting as the federal and state dynamics play out, especially over the next few years.

SPEAKER_02 31:29

I'm gonna give you an example about why I'm not crazy about uh politicians. Now, maybe not all of them. I mean, Bernie Sanders, for instance, uh, he doesn't candy coat it. Uh it's interesting with Bernie. I I think about the only political fundraiser I ever went to uh was for Bernie around '93 or '94 when he uh wanted to go into the uh uh Senate when he was still in the U.S. House of Representatives. And I think a lot of people there were National Guild members, National Awards Guild members, talk about a just a huge void between me and the National Awards Guild. I tried it out, there were some birds with a feather, but it was still a little too overly doctrinaire. And I walked up to him and I said, uh uh Congressman Sanders, I said, Will you support the movement to uh legalize marijuana? And he said, It's the furthest thing from my mind when uh jobs, health care, and the economy are a disaster. I won't, I I enjoy doing his accent, but I won't do it here unless you request me, and I know you won't. And I said, But well, that's okay, but if you want my support and if this goes for a house, uh uh house uh uh uh vote tomorrow, how will you vote? And then he said, Okay, uh you got me cornered. Um if it goes, if they're still selling it to uh kids on the schoolyard, I can't support it. And look, he was being totally honest. I think it's come through a metamorphosis, but I I got a phone call from a colleague of ours. Remember, I said, I'm gonna avoid naming dames on this show. And he says, I'm running for uh the House of uh for the Virginia legislative, the house of delegates or whatever. Uh, can I rely on your support after he tells me stuff like he's gonna go uh to increase uh police funding? I said, Why would I, as a radical civil libertarian, want to go ahead and increase police funding? He said, to get more reckless driving cases. That was as nonsensical as when someone said to me, uh, how can you support the legalization of marijuana? You'll get fewer cases. So what? The legalization of marijuana, which isn't fully legalized, this is bringing us close to the civil liberties paradise. So one of the first things I said to him was, What are you going to do if in the legislature to eliminate the death penalty in Virginia? And he swatted me away verbally, said, That ain't gonna happen, and he went into the next thing. He lost any chance of me giving any money to him in the uh when I won't give any money to legislator, uh legislative candles anyway, right then and there. And what happened, Brian, to the to the death penalty in Virginia? Uh, I don't know what I thought was gonna be the last to happen during my lifetime, the fall of the Soviet Union or the death penalty leaving in in Virginia. That was amazing. What role did uh Justice Ford have in getting rid of that legalized murder, the state-sponsored murder of the death penalty?

SPEAKER_01 34:29

Um, we had none um in that other groups like uh Virginians against the death penalty, uh VADP had been leading that fight for years and years and years and years. Um, they were a wonderful organization that worked themselves out of existence. They shut down. Um, and they and talk about, I mean, an organization that shouting into the wilderness for years, getting Democrats in Virginia until literally until 2021 when it happened. I mean, I met with my senator, who's no longer in the Senate right before that, and he said, he said, Well, you can talk to me about whatever criminal justice reform you want, but I'm not getting rid of the death penalty. Um, and that was Dick's ass law, and because of people like Cindy Cunningham, who does great work um, you know, educating people about the General Assembly, she'd been in his office for years saying you got to get rid of it and working on people. And eventually it happened. Um, I'll put in a plug for public defense with the death penalty. Virginia was one of the leaders, and I mean, since 1619, had been one of the leaders in killing human beings with our legal system um in the United States. Um, I think Virginia was third or fourth total. Maybe Oklahoma passed us and you know, at the end. But in I think around 2008, the capital defender offices in Virginia opened up as part of the Engine Defense Commission. And like many states before that, it was basically lawyers in private practice who would take capital cases, some of whom were fantastic, wonderful, amazing lawyers who did fantastic work for their clients, some of whom did not because they were getting paid a thousand dollars to do a capital case with no support. And in some ways, through no fault of their own, a lot of people were doing the best they could in the circumstances they were in. But a lot of people died and were murdered by the state on an electric chair because of bad legal representation, because of the structure set up by the government to give the appearance of due process without actually good legal support. Um, coincidentally enough, once the state decided to actually fund experts in capital defense, so you had lawyers who were experts in capital defense, mitigation specialists, investigators, um, people who could hire experts who only had a few cases. So their whole job was focusing on these capital cases instead of running a law practice and doing enough reckless drivings to keep the lights on while also trying to do a capital murder case, which is what you had to do. You were getting paid so little money. Um all of a sudden, the number of capital verdicts, death sentences in Virginia plummeted. I think it was one or two after the Capitol Defender Office opened. And that was a combination of both Capitol Defender Offices and private lawyers who were either working with the Capitol Defender Office or in conjunction with each other. But there was training. There were experts to go talk to. And it really was once you had a dedicated defense system set up to fight the death penalty, all of a sudden it was really hard to get the death penalty. Prosecutors had to work on tons of motions, tons of funding, experts challenging bullshit future dangerousness experts that were going around just making stuff up, um, doing stuff that was racist, you know, talking about how to predict someone's gonna be more violent in the future, um, fighting really bad precedent from our courts of appeal and Supreme Court and the US Supreme Court. But they did it. And because they had money and funding, basically there were no there were no death verdicts. And then I think at the end that was a big part of the legislature looked around and said, Well, there hasn't been a death sentence in 20 years, almost 15 years. Why are we doing this? We have a whole we're spending so much money on this for what? Um and I think the lesson to take away there is obviously for the death penalty in other states, and obviously the death penalty is completely immoral and should never be used in any circumstance against anybody. The state should not be involved in anything close like murdering human beings. But taking it to the practical realities here, if you fund a good defense, all of a sudden the government's job gets really hard. If you do what we're supposed to be doing, which is trying cases, you know, instead of making this a plea factory, all of a sudden the government's job gets really hard and they have to pick and choose. Um and we know it worked in the most serious cases. Why wouldn't it work in a less serious case?

SPEAKER_02 39:12

Okay, so if we fund defense well enough, they get a good defense. So how much of a dichotomy is there? My my lights are flickering. I hope my electricity will stay on. Uh, how much uh of a dichotomy is there between the pay for public defenders in Fairfax and prosecutors in Fairfax? To what extent is the uh county government uh paying for any uh closing up any differential in pay between the two? And to what extent is the Fairfax Public Defender's Office having trouble keeping good lawyers if there is a big gap in pay between public defenders and prosecutors, and just between public defenders and doing any other kind of job as a lawyer?

SPEAKER_01 39:59

So I don't I don't have the stats right now. Um, there is a difference between the pay for public defenders and the commonwealth attorney's office. We get paid less than them. When I started, um, which was 13 years ago, we got paid significantly less than them. We were funded by the state, um, the commonwealth attorney's office gets some state funding, but also local funding, and they made much more than we did. I think they had people who were legal assistants who made more than our deputy public defender, who'd been there for 15 years at the time I started. So that was a huge problem. When I started, the average lifespan of a public defender, I think, was three years, maybe four. People would basically stay long enough to a time where you either had a kid or wanted to buy a house and they left because you couldn't do that, depending unless you were lucky enough to be like me and have a partner or a wife who makes much more money than I do. Um, you couldn't you couldn't live like that, right? Um Todd Pettit, who used to be the chief public defender, and Don Buterach, who's now the chief public defender, worked really hard with the Fairfax County Board of Supervisors to get us a county supplement, um, which had been started in Charlottesville, Alemarle, which had been done um shortly after that in Arlington, um, Alexandria, Prince William now has it, other places have it as well. Um, they got us a county supplement. And at that point, it raised our levels of salary to more or less the midpoint of the equivalent Commonwealth attorneys where they were. It wasn't exactly right, it didn't really fit, but it was a significant pay bump. And when we got that pay bump, all of a sudden the average lifespan of a public defender went from three years to it's probably now six, seven years. And that type of, if not more, we have, you know, up until recently, we had five, six, seven people who'd been there more than 10 years. I don't think there was more than one or two people who'd been there more than 10 years when I started. And having that number of people being able to stay and have that experience was life-changing because people trying murders, you could have two people who've been public defenders for more than 10 years instead of having someone who has been there for five years and someone there for two years. Just the level of trial experience, the level of institutional knowledge, the how long you've been in front of these judges, everything changed. And you could stay working in public defense and have kids and buy a house and live in Fairfax or live in Northern Virginia, um, which just wasn't feasible before. A few years ago. Yes. Um, a few years ago, the county reduced the supplements that we get. So it used to be vary depending on level. They then set a we get a 15% supplement of whatever the salary range is from the state. That's the same as the clerk's office and the probation department get. They get 15% as well. So that means that basically as we move forward, once you cycled everyone out of their current positions, the amount of money in terms of percentage was going down. Um, now state salaries have now gone up. So it's not as big of a difference as it was going to be because of how they structured it. But the county um, you know, we're always looking for more because more is being put on us. The since the time we got these supplements, body worn cameras came into existence. The amount of discovery we look at now is completely different. Specialty dockets, um, you know, the recovery docket, the mental health docket, the veterans docket, those take lawyers to do. And they take lawyers out of the regular rotation for periods of time. And they're a lot of work um that we do. And we, you know, we're the type of office that, you know, whenever the court Like, hey, we want something, we need this, we need a new docket. We're we're the first ones to say, yes, we'll do it. Um, but at some point, resources are going to be stretched. And now there's a, you know, when I applied in the Great Recession, you know, years ago, there were 300 applicants for three spots at the public defender's office. Really? Now, yeah, I mean, it was wild back then. Um, I mean, 2011, 2012, big law firms were crashing, the government wasn't hiring, it was it was a very different, a very different world. Now, the the legal economy is pretty good, but also because of the pandemic and other issues, a lot fewer people were going to law school. And because of things I think are caused by the you know, the adoption of the universal bar exam in other states and not in Virginia, people aren't taking the Virginia bar at the same rate. So there aren't there, quite frankly, aren't enough lawyers in Virginia to do things like civil legal services, um, instant defense, and even prosecution. It can be really hard for those types of offices to get lawyers because there just aren't enough. And that's before we talk about there's whole counties where there are no lawyers based in many counties in Virginia. Um, there's legal deserts. So money helps um that problem as it always does to be able to attract someone from a different job or from working in a different place. So we're always looking for support from both the state, which has been great in increasing funding recently, but also the county because of the county-specific things we do here. Um, but it's been a huge change in 13 years, thanks to some of the bosses I've had and people have been on the board of supervisors, um, people who lead the Engine Defense Commission. Um, the the current governor is the one who put in his budget the big increases for public defenders across the state. So it's been a bipartisan issue and recognize the importance of that, but still there's definitely work to be done.

SPEAKER_02 46:00

Excellent. Thank you for that information. So when I was a public defender in another state, uh one of the biggest tensions I had with judges versus if I was in private practice was this view by a lot of the judges that the public defenders are fungible, we're there all the time, therefore we don't have schedules to uh accommodate as much. Uh there is um a senior public defender in another county in Virginia, I won't name the name again, won't name the county, who's talked about tensions between the public defenders and the circuit, some of the circuit court judges. Are you willing to share about uh how well the public defender lauras get along with the judiciary and just and just the judicial staff in general over here in Fairfax?

SPEAKER_01 46:46

Yeah, I think we have a pretty positive relationship in that in not a you know, not in a case, right? We take an adversarial relationship to prosecutors and to often judges' positions when we're representing our clients. So that I want people to take as a given. We aren't just doing what judges want, we fight judges and annoy judges all the time. But taking it to a court administration um process, I think in the circuit court we have judges who respect our office and they respect our time. So I think there are a few judges who leave public defenders for the end, but compared to when I started, that's not really the case. We're called like everyone else. Um, I think judges listen to our concerns in the in the bar committees when we have that, and our concerns are taken seriously in terms of court administration. You know, how that's going to work or what should be happening. Um, so I think that is a good thing. Um, that's not to say that judges are doing what we want either on court administration all the time, they're not, and we have fights about that. We're currently having a disagreement with the general district court about having prosecutors in our office at first appearance at arraignments for people to try to get them bonds that are not held unnecessarily for several days. There's definitely tensions that come up on a lot of issues, how dockets are scheduled. Um, but that's the point. We're supposed to be pushing the judiciary. Um, and if we're not pushing the judiciary, we're not doing our job. So, at least in Fairfax, we have often judges who will at least listen, not all the time, but judges who will often at least listen to our concerns and take them seriously, which I think has been a change again over the past 10, 15 years when they those issues were not taken as seriously from the defense side for a long time.

SPEAKER_02 48:40

Okay, so what what is uh what are lawyers your office doing about trying to change things about arraignments and what is Justice Ford or anyone else trying to do to make sure that we can uh can get uh lawyers with uh defendants uh to get uh pretrial release consideration as soon as possible in front of a judge after the magistrate denies pretrial release?

SPEAKER_01 49:03

So there's work in both those areas um for many years as a uh well, it's a coalition of groups. Justice Ward is a part of that called the Pretrial Justice Coalition. Um they were the group that did, for example, changing the presumptions against bail um and a lot of the other changes around bail recently in Virginia. The past several years, one of the main priorities of that coalition has been counsel at first appearance, um, which is having a defense lawyer and a prosecutor most of the time at the first appearance before an actual judge, so in the district courts, so that a bail determination can be made at that point. There is there are a lot of counties in Virginia that already did this. Um, James City County, Stanton, Richmond, Petersburg, Alexandria, Prince William County, a very diverse set, rural, rural, urban, northern Virginia, Central Virginia, um, Tidewater, lots of different places do this, showing that it works. Um, we had a bill go pretty far. It think past everything but appropriations, as often happens. But a letter was sent to basically say um to the Supreme Court, you should take a look at this. Um, the Office of the Executive Secretary of the Supreme Court convened a working group that was mostly judges, a few lawyers, and they basically said, we're not sure this is feasible for a lot of reasons that I think were not fully developed because there were too many judicial voices there and not enough lawyer voices there. The in response to that not going as far as we wanted, that bill I think is still coming and it's going to come up again this session. Um, in Fairfax, we worked with the Commonwealth Attorney's Office, with the sheriff, court services, with the court to start a pilot program on counsel at first appearance. We didn't do what would be national best practices for it because we were trying to fit it, we were trying to get in the door. So basically, what was going on was for a month back in May into June, I think, or April into May, the Commonwealth Attorney's Office was there, public defender's office was there, and basically what happened is the Commonwealth would say at the arraignment, we recommend release. The defense wasn't allowed to make an argument for the most part. That was by agreement and by design. We were trying to get what we saw was basically 80% of people who were getting a bond motion the next day from our office. So you arraigned on Monday, we did a bond motion on Tuesday, 80% of those people at least were getting out, which means they were just being held for a day for no reason. That program was incredibly successful. Um, a significant number of people released that arraignment. The number of bond motions went down, which helps everybody. Um, there are a lot of collateral benefits to that. Court appointed counsel doesn't have to go to the jail, see people who are already out. People don't have to wait for court-appointed counsel to you know get the paperwork. It can take days for that to happen. People didn't have to wait even for our office, who's doing a bond motion the next day for almost everybody, to have that day or three days or four days, depending if it's a weekend or a long weekend. Um, and the time didn't really take that long. So it was it was incredibly successful. The company attorney's office wanted a pause to kind of set their systems up to continue it, and they did that. But they wanted a they wanted more time in the morning to prepare for what could be we could have 20 to 40 arraignments, we could 50 arraignments depending on the morning. It takes a long time to prepare that. So they wanted an extra half hour before bond motions started to make sure they were prepared for both the bond motions and the arraignments. Um, that's caused a sticking point with the court where the court's unwilling to move the time of bond motions. Um so we're at a little bit of an impasse now for a program that everyone thought was a good idea and everybody thought worked, including I think the court. So we're still working on next steps on that. That's a recent development that we found out there was this hard impasse after months of work. But as usual, we know, which is reflective of all the data on counsel at first appearance, it works to reduce human misery, if nothing else, holding people unnecessarily. And we know holding people unnecessarily is a even for a day for low risk people can is going to cause them to be more likely to be found guilty, more likely to plead guilty, and more likely to recidivate.

SPEAKER_02 53:25

Yeah.

SPEAKER_01 53:25

Even if their charges ultimately dropped now, they're more likely to recidivate in the next three to five years. Just because when you're in jail for a day, you can lose your job, you can lose your kids, you can lose your house, and it can really ruin your life, even if it's just for a few hours. Um, so sometimes even good data and good policy isn't enough to get something done. But we're hopeful we can figure out a path forward as we as we go here. But hopefully more to come on that.

SPEAKER_02 53:49

I hope so. I've done something different with this show uh than with most when I'm with uh criminal defense lawyers, which is I I I did want to find out this bigger picture that's going on uh for the audience. But the title of our show is Beat the Prosecution. So during these last five minutes, what do you do to beat the prosecution? Where did you get your main training? And who are your biggest heroes for inspiring and uh showing you the way to do great criminal defense work?

SPEAKER_01 54:22

I got my training um primarily at the public defender's office in Fairfax from colleagues present and past. Um I also received, I was lucky enough, um, Georgetown Law has an excellent clinical legal education program. So I had two professors in my clinic who were excellent lawyers um who really believed in defense and taught me a lot. And the judge I clerked for um taught me a lot about criminal practice. He was a public defender for 19 years before he took the bench. So I learned a lot from him. Um, I also learned a lot from watching court, you know, four-appointed lawyers, private lawyers. Um, you learn a lot just from talking to people in the hallways and seeing what they do, um, in addition to the more formal training I was lucky to get in the PD's office. Um, in terms of heroes, um it's not brown nosing my boss, Don Bouderak, um, just makes me a more bold lawyer every day. Um, makes me want to reach and do new exciting things. Um and there's a million other lawyers who I practice with who I could I've learned something from all of them. Um, in terms of beating the prosecution, I think it's you have to have a robust motions practice and prosecutors to know that if you won't do what they want, you're going to bury them in paperwork and do the longest preliminary hearing imaginable and make the simplest case the most complicated. That's really my wheelhouse. How can I build a Mount Everest out out of a molehill, um, let alone a mountain? And sometimes you win. Um, and sometimes you come up with really creative writing arguments and it's interesting. And sometimes you get to learn something you didn't know before. Um, but I think that in preparation, that's what I've learned. You have to be you have to be prepared for everything you want to do, everything they want to do, and everything in between. And if you're prepared for everything, you'll be ready for whatever bullshit comes up during the trial or the hearing because something always comes up. Um, we don't always have time, but if it's important enough, you got to make the time. And that's really the way to do it.

SPEAKER_02 56:30

To what extent does your office have funding and spend the funding for uh lawyers in your office to go to the National Criminal Defense College, Trial Practice Institute, and other national trial programs?

SPEAKER_01 56:44

We have three lawyers who have been through NCDC. Um, NCDC was actually in Fairfax last year, so we were able to send two people, which was great. Um, we had a former colleague of mine who was at Jerry Spence's uh college. Um, and a couple of us went to Gideon's Promise training as managers um to learn their kind of training the trainer and their management programs. Um, so the Engine Defense Commission as a whole in our office does send people to those um as often as we can and find ways to do that. We've also done we do a lot with NACDL as well, um, and get trainings through them on a variety of topics.

SPEAKER_02 57:25

Excellent. I went to uh the trial practice institute and the uh and uh the trial or as colleges helped me tremendously. I told you, Brian, that we would take an hour. We're a minute short of that. Is there anything you want to tell the audience that you have not already said?

SPEAKER_01 57:45

I don't think so. Uh anyone who's in the fight, keep up the fight. It's hard, it's about to get harder, um, especially for our non-citizen clients, and we just gotta keep it up and not get discouraged.

SPEAKER_02 57:57

Thank you so much, Brian Kennedy, a great man and a great criminal defense lawyer. I appreciate it so much. This has been John Katz on Beat the Prosecution. I'm a Fairfax Virginia criminal defense and DUI defense lawyer. Brian, please stand by.

SPEAKER_00 58:14

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at infobeatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.