The “Right” Side of Justice: A Personal Reflection Upon the Differences Between Practicing Criminal Law in Virginia and Massachusetts


By: Erica Rebussini, Notes and Comments Editor

Over the past two summers I’ve had criminal law internships in Virginia and Massachusetts, respectively. After these experiences, I can’t help but question some of the disparities I witnessed in those systems. Broadly speaking, the differences between these criminal court cultures are palpable in both the substantive application of the law as well as practical nuances inherent in those systems. Here, I intend to highlight (albeit briefly) some of those differences, contrasting these systems based on my own personal experiences as an intern at the Public Defender’s office in Petersburg, Virginia, and as an intern at the District Attorney’s office in Worcester, Massachusetts.

Prosecutors and defense attorneys have a notorious reputation for being adversarial towards one another, not unlike the narratives presented in TV shows and in movies. At first blush, this narrative of an adversarial relationship between prosecutors and defense attorneys (but moreover, defendants) is generally expected in Virginia. Moreover, in my experience Virginia defense attorneys provide counsel to predominantly African American clients who are being prosecuted by mostly white Commonwealth’s Attorneys. To ignore this dynamic would be dishonest — there is a visible implicit bias still present in impactful ways in Virginia given the trajectory of the law and the way it has historically been balanced against African Americans and defendants, generally speaking.[1]The tension between parties in criminal cases sneakily demonstrates that dynamic.

While Massachusetts is not unlike Virginia (nor any other state) in its culpability for implicit racial bias, Massachusetts seems to foster less of this racial dynamic in its criminal courts. It struck me that more often than not, I observed white district attorneys prosecute white defendants — if anything, the number of black defendants versus white defendants toe an equal line in Massachusetts. I’m not sure how much of this dynamic truly plays a role in the relationship that prosecutors and defense attorneys and defendants share in Worcester, but I noticed a more amicable, casual air about interacting with defense attorneys than there was in Virginia. People’s liberties are always at stake in a criminal prosecution and it was not lost on me that the law in Massachusetts seems to be much more liberal and defendant-friendly.

For example, during my summer in Worcester, Massachusetts, breath tests were inadmissible in Operating Under the Influence (OUI) trials. While this gave me great practice as a student prosecutor to get on my feet and get creative, I was troubled by the amount of people who walked out of the courthouse without consequence — other than a trial to determine their innocence or guilt — for conduct that our common sense recognizes as inherently dangerous.

I prosecuted people who struck medians, were unable to walk without using the side of their car for balance, or even had judgment so diminished that they were slinging Bud Lights out of their car window—all were found not guilty of OUI. If juries and judges had the opportunity to see the results of these breath tests, they would have seen numbers like .16, .18, .2 — all blood alcohol contents over two times the legal limit of .08. To add insult to injury, people would admit to police officers and troopers that they were drunk. But the truth is, it’s not illegal to drink and drive — the conduct becomes criminal when you are impaired that you cannot drive safely. So without a Supreme-Court-verified barometer for impairment to consult for guidance (i.e. a breath test), it’s a slippery slope in Massachusetts.

In Petersburg, I witnessed the opposite; not as much surprise at trial verdicts. Sentencing might be an open discussion, but I recall guilty verdicts for most offenses that went to trial. I wrote memos back at the Public Defender’s office, finding that one casein my research that might tip the scale in our favor. Excited to watch an attorney present the argument, I quickly learned that despite a case seemingly directly on point, other factors were found (exigent circumstances and police safety were common ones) to be more persuasive and dispositive in the way of conviction.

Jury instructions possess great power of persuasion in both Virginia and Massachusetts. The way they are presented, however, varies. In Virginia, there seem to be many presumptions in favor of the Commonwealth in the guilt phase of the trial. Defendants are burdened with practically proving their innocence against these presumptions. In contrast, the Massachusetts jury instructions caution fact finders in an occasionally exaggerated manner about the concept of doubt; prosecutors often have to battle these repeated instructions by re-educating juries on the standard of doubt, reminding jurors that beyond a reasonable doubt doesn’t mean beyond all doubt. Still, jurors would hang their hats on any shred of doubt in fear of disobeying those instructions — a testament to the fact that prosecutors spend much time and its effect on the burden of proof.

I saw this imbalance not only in jury instructions, but also in bond hearings: Virginia law contains rebuttable presumptions against bond (so functionally, in favor of the Commonwealth). The presumption against bond exists for cases with dangerous circumstances including sex offenses and drug and firearm charges. Often, our clients did not have the ability to pay bail regardless of the dollar amount our office would represent to the court. Inevitably,we were still met with their questions and concerns once a bond was set — less often in Virginia it seemed was cash bail set at a reasonable amount our client did or could pay. Notwithstanding these disparities in bond amounts, many of our files were lettered “HWOB” (held without bond) in red ink.

In contrast, in Massachusetts I observed many more people released on bond (and sometimes not showing up despite their responsibility to show up) instead of being escorted out of lockup and into the courtroom in cuffs. Deprivation of liberty in Massachusetts, at least from my observations, is more carefully assessed by the judge.Most judges looked for reasons to let someone keep working, be with their families, or not be held if their detention wasn’t necessary for the safety of the public.

This is all to say that I feel more on the “right side of justice” when I am doing defense work in Virginia, and in turn, when I’m prosecuting in Massachusetts. Both of my experiences felt something like standing on the higher end of the scale and adding weight to bring both sides more neutrally situated. We need good defense attorneys, prosecutors, judges, and numerous other qualified participants to make our system work properly; there is no part of me personally inclined to argue for the absolute “righteousness” of either defense attorneys or prosecutors.

However, factors like the extremely apparent implicit racial bias in Virginia signals to me that defendants need good defense attorneys to balance their chances of getting a fair trial. Explicit racism is still present in very rural counties in Virginia — people drive around with Confederate flag bumper stickers —in a state that still has the death penalty. The consequences are severe, and they spiral quickly. In Massachusetts, I saw a real commitment to the individual rights of defendants in ways that compels me to ask whether the safety of the public or justice for victims remains a substantial factor in the decisions made by judges and juries. Massachusetts prosecutors battle repetitive jury instructions and high burdens of proof that make the prosecutor’s job seem nearly impossible.

Working for both sides in such different states has been an incredibly illuminating and thought-provoking experience for me as a student standing at the cusp of my first years as a criminal lawyer. These thoughts aren’t going away — maybe these experiences were a sampling of what state sovereignty means. But they may also detail our country’s values and what we intend to do about differing practices which lead to disparate outcomes for similar conduct, if we do anything at all.

[1]See generally,Press Release, Office of the Governor, Governor Northam Announces Members of Commission to Examine Racial Inequity in Virginia Law (Sept.3, 2019) (on file with author).See also, Report to the U.N. on Racial Disparities in the U.S. Criminal Justice System,The Sentencing Project (Apr. 19, 2018), (explaining that younger black men’s bonds are set higher than older white men’s bonds).