Robert King Via Jr. rejected a plea deal in 2011 that would have given him 15 years to serve for an armed home invasion in Hampton.
Though his co-defendants agreed to similar plea bargains, Via went for broke: He took his case to a jury trial.
It didn’t go well for the Poquoson man. A 12-member Hampton jury found him guilty on all counts. He got 128 years and a day to serve, the minimum he faced for a crime in which no one was injured.
The jury foreman later wrote to Circuit Court Judge Christopher W. Hutton and urged him to suspend some of that time — something jurors did not have the power to do. The foreman told the judge that the jury gave Via as low a sentence as possible for the convictions.
But Hutton declined to intervene, and imposed the 128 years and a day.
That case was later overturned for a different reason. Via, now 29, got a new trial, and is now serving a 20-year sentence.
Still, Via’s story shows that jury trials in Virginia are a high-stakes gamble.
Juries are more likely than judges to acquit defendants, particularly since it takes only one juror to block a conviction. But for a variety of reasons, juries often hand down far stiffer sentences for those they find guilty — and judges rarely step in.
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‘Biggest reform that could happen’
A bill in the General Assembly would change that. It would give defendants convicted at jury trials the option of being sentenced by a judge rather than a jury, except in capital cases.
Juries have been involved in sentencing in Virginia since 1791.
The proposed change would sharply reduce a defendant’s risk in taking a case to a jury. Not only could there be a spike in jury trials, but defense attorneys say they could drive harder bargains on plea deals — not just accept whatever the prosecution offers.
“This is the biggest reform that could happen in criminal law in Virginia,” said Ron Smith, a local defense attorney. “And there’s not anything second, third, fourth or fifth … If you want a more fair system, there is nothing close to this reform.”
The legislation’s sponsor, Sen. Joe Morrissey, D-Richmond, termed the bill “the most the most significant piece of criminal justice legislation in the last decade.”
“It will immediately halt … prosecutors giving heavy-handed plea offers to the defendant with the admonishment, ‘Take it or leave it,'” Morrissey said. “When prosecutors say, ‘We’re gonna demand a jury trial,’ that’s code for jury sentencing, which is code for decades in prison instead of the two years that are being offered.”
“How is the system fair when the prosecution is using your constitutional right to a jury trial as a hammer?” Smith asked.
He said he didn’t foresee a huge jump in jury trials if the law changes. “What’s really going to happen is that they will make you plea agreements that you can live with,” he said. “They will have less ability to just dictate sentences.”
Newport News Deputy Public Defender David Lee said the change would mean defendants “would no longer have to pay the jury penalty — which is that if I do get convicted, I’m gonna get thumped.”
During the guilt or innocence phase of a trial, he said, jurors are more likely than judges to have “reasonable doubt” concerns. “They are typically somewhat more critical of police and the criminal justice system because they don’t see police officers in their courtroom every day,” Lee said.
But even as jury sentences can often be fair and lenient, he said, as a whole juries “tend to be more emotional,” less predictable and more heavy-handed.
“It’s right after they’ve heard all the bad evidence,” Lee said. “There’s no cooling off period before they impose a sentence.”
“The thinking is that if we have the benefit of a jury for the guilt or innocence phase and then allow it to go to a cool-headed judge for the sentencing, we would get better outcomes overall,” he added.
Morrissey’s bill passed the Senate Judiciary Committee Thursday on a 10-5 vote. It was sent to the Senate Finance and Appropriations Committee, where it will be considered for its potential impact on budgets.
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Prosecutors opposed to changes
Prosecutors widely oppose the legislation, saying it’s only fair to include jurors in sentencing criminals in their communities.
“It’s a bedrock foundational belief — and a basis of criminal law — that defendants should be tried in the jurisdiction where they commit the crime,” said York-Poquoson Commonwealth’s Attorney Benjamin Hahn.
“Surely the citizenry of that jurisdiction should also have a say in the punishment,” Hahn said. “The community should have that right.”
Hampton Commonwealth’s Attorney Anton Bell said he doesn’t know of any prosecutor who favors the change. The legislation, he contended, isn’t about evening the playing field, but about “tilting it in favor of defendants.”
Those defendants, Bell said, will have the best of both worlds with the change: “They only have to trick one person” to win an acquittal, he said. But if they still lose the case, he said, the judge will sentence them instead.
“If they are going to ask for a jury of their peers, then their peers should sentence them,” Bell said.
The cost of the increased jury trials — and the potential delays in the courts — could have big impacts, too.
Hahn agreed with Morrissey that the bill would “transform” the state’s criminal justice system, with more judges, prosecutors and public defenders needed to handle the cases.
“The General Assembly is going to have to fund that — because the system is not presently able to handle that potential reality,” he said. “They’re gonna have to pump millions upon millions of dollars into the criminal justice system.”
“I hope they seriously consider the financial impact,” Hahn said. “Because the criminal justice system cannot grind to a halt.”
Bell pointed out that jury trials in Hampton are already being scheduled into next year because of the pandemic and because the city is down a judge.
“We’re going to have an increase in jury trials that the courts are not going to be able to handle right now,” Bell said. “If juries increase astronomically, how are we going to try these cases within the speedy trial time frames?”
Smith, on the other hand, asserted that Virginia’s justice system violates the right to a jury trial spelled out in the Sixth Amendment. To fix that, he said, cost shouldn’t be a roadblock.
“It costs too much to abide by the Constitution?” he asked.
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Juries working in the dark
Virginia is one of only six states in the nation that include juries in sentencing.
In the other 44 states — and in federal court — once a jury makes a finding on guilt or innocence, its service is over. But in Virginia and five other states, juries that decide on guilt or innocence then sit for an immediate sentencing hearing.
Jurors hear testimony from victims, defendants, and the families of both. They learn of a defendant’s criminal record for the first time. And they are told the range of punishment that each charge carries under law — such as 20 years to life for first-degree murder, or five to 40 years for armed robbery and so on.
But other than that, they make their sentencing decisions largely in the dark.
Unlike judges, juries don’t get discretionary state sentencing guidelines. Those guidelines — a system that began in 1995 to reduce sentencing disparities around the state — score each defendant numerically by such things as age, number of victims and criminal record, then come up with a range of punishment that’s seen as appropriate.
Moreover, juries aren’t told the statutory sentencing ranges before they decide to convict. They can’t suspend prison time — even if they think the statutory minimums are too high. And they can’t ask that sentences run concurrently rather than consecutively.
Sometimes jurors ask judges for more information during deliberations — such as whether the sentences will run concurrently or consecutively — and are rebuffed. “Your job is to decide an appropriate sentence,” they are told. “Don’t concern yourself with what happens next.”
Jurors aren’t told the reality: That sentences run consecutively unless a judge intervenes later.
Judges have the discretion to modify the jury’s sentence at a later hearing.
The judges get the sentencing guidelines for those hearings, as part of a detailed report about each defendant. They have the power to suspend jury sentences (though they can’t increase them). They can run sentences concurrently. And they can hand down probation.
But it’s extremely rare for a judge to change a jury’s sentence. The hearing typically serves as a formality where the judge rubber stamps the jury’s prior “recommendation.”
A 2019 report by the Virginia Sentencing Commission said that Circuit Court judges modified 9 percent of jury sentences statewide that year. But local lawyers say the real figure — at least in Hampton Roads — seems far lower than that.
“In 20 years of practice, I don’t believe I can recall ever seeing a judge change what a jury has recommended,” Lee said.
Smith, who said he’s seen it happen only once in his 37-year career, said judges should step in more often to stop unfairness. The fact that they hardly ever do, he contends, is the real problem.
“The judge is going to give whatever the jury recommends in the vast majority of cases,” Smith said. “I believe that (the state jury sentencing system) is unconstitutional as applied. Not as written, but as applied.”
In an article in the William & Mary Bill of Rights Journal in 2014, author Caleb Stone called Virginia’s jury trial system an unconstitutional form of “Sentencing Roulette.”
“The message that Virginia sends through this twisted game is that the only way to win is not to play,” he wrote. “This means pleading guilty and avoiding the possibility of the unknown, unpredictable sentence completely.”
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When do judges step in?
In 2004, Newport News Circuit Court Judge David F. Pugh cut a jury’s 93-year sentence to 35 years in a home invasion in which no money was taken and no one was wounded.
In February 2017, Hampton Circuit Court Judge Bonnie L. Jones cut the 10-year sentence that a jury decided upon for a man convicted of child abuse. Jones cut the sentence to five years, and waived the jury’s $25,000 fine.
“I think five years is a good compromise,” she said, between the jury’s 10 years and state sentencing guidelines that called for two years and nine months to serve.
But the Via case — where Hutton allowed the jury’s decision to stand — is the far more common scenario.
Just before 1:30 a.m. on Sept. 11, 2010, three armed and masked men barged into a home off Big Bethel Road in Hampton.
They held the home’s five occupants at gunpoint, but fled when police arrived. A few months later, Via — accused of planning the robbery — and two co-defendants were charged.
With several victims, the list of abduction and gun charges increased. (Forcing someone to either move or stay put is considered an “abduction” under law).
The charges would lead to large sentences if convicted of all counts at trial. Via’s two co-defendants cut a deal, getting 11 and 13 years, respectively. But Via, who maintained his innocence, got 128 years and a day to serve at trial.
The jury foreman who wrote to Hutton said they would have gone far lower if they could have.
“I, for, one was taken aback that even at meeting the minimum sentence allowed on each guilty count, we had no choice but to sentence Mr. Via to the minimum 128 years,” he wrote.
The foreman added that when jurors gave Via only a day for one of the counts, “You would be correct to infer that the jury granted what leniency was within our authority.”
If jurors knew how the sentencing system worked, he wrote, “the jury may have arrived at a different set of verdicts.” He urged Hutton to run several sentences concurrently and give Via only the mandatory of 28 years on several gun convictions.
But Bell, the case’s prosecutor, urged Hutton to keep the 128-year sentence intact, saying Via needs to “live with his decision” to take a jury.
“He should not be able to have it both ways,” Bell said. “I think it sets a dangerous precedent. I don’t know a situation in this jurisdiction where the judge has overturned a jury sentence.”
In the end, Hutton said he didn’t “take lightly” the jury foreman’s letter, but said he found 128 years “an appropriate sentence.”
“I don’t know anything that went on in the jury room,” Hutton said at the 2012 hearing. “I don’t know if (other jurors) felt differently … I look at the jury’s finding on Mr. Via’s guilt on all charges, (and) I find no difficulty with the recommended punishment affixed by the jury.”
Via’s case was later overturned on appeal because the jury wasn’t warned to take a cooperating witness’ testimony with a grain of salt. After two hung juries, Via was finally convicted of three charges at a fourth trial in 2018. The jury gave him 23 years, with a judge later shaving three years off of that. Via is now slated for release in 2028.
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‘A huge step forward’
Smith and Lee said the change in law now being discussed at the General Assembly would be good because judges typically craft better, fairer and more thoughtful sentences than juries do.
“You can ask a judge, ‘Why don’t you give him five years but put that over his head with conditions, and put him on probation,” Smith said. “You can’t argue that to a jury,” since they have no authority to do that.
Lee said that when he talks to his clients about pleading guilty or taking a case to trial, he always has “a serious conversation” with them. “Juries can be good, but there’s a really, really bad downside,” he tells them.
“Being sentenced by a judge — who’s given all these other tools in their arsenal to assess my client’s history — is a huge step forward.”
Peter Dujardin, 757-247-4749, pdujardin@dailypress.com
