Sixth Amendment violation in Virginia

2022“Failure to satisfy the requirements of McDonough does not end the court’s inquiry, however, when the petitioner also asserts a general Sixth Amendment claim challenging the partiality of a juror based upon additional circumstances occurring outside the voir dire.” Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir. 1998).

2007A general Sixth Amendment challenge to the partiality of a juror, however, must be “based upon additional circumstances occurring outside the voir dire.” Id.

2013See Massiah v. United States, 377 U.S. 201, 206 (1964) (finding Sixth Amendment violation when defendant was induced into confessing by -9- a co-defendant who was operating on behalf of government agents to intentionally illicit incriminating information.

2005We have held that an accused is denied “the basic protections” of the Sixth Amendment “when there [is] used against him at his trial evidence of his own incriminating words, which federal agents . . . deliberately elicited from him after he had been indicted and in the absence of his counsel.” Massiah v. United States, 377 U.S. 201, 206 (1964); cf. Patterson [v. Illinois, 487 U.S. 285 (1988)] (holding that the Sixth Amendment does not bar postindictment questioning in the absence of counsel if a defendant waives the right to counsel).

2022Va. 2021) (rejecting the defendant’s assertion that the government was partially responsible for the delay because it “failed to adequately control [the] pandemic in its early stages”), appeal docketed, No. 21-4269 (4th Cir. June 1, 2021); see also State v. Brown, 964 N.W.2d 682 , 692-93 (Neb. 2021) (holding that pandemic-related delays were “valid” for purposes of federal constitutional speedy trial analysis).14 In this case, the pandemic made it unsafe for all witnesses and other trial participants to come to court for a period of time, rendering them justifiably absent to protect their “hea

2021Va. Feb. 26, 2021) - 11 - (rejecting the defendant’s assertion that the government was partially responsible for the delay because it “failed to adequately control [the] pandemic in its early stages”), appeal docketed, No. 21-4269 (4th Cir. June 1, 2021); cf. United States v. Richman, 600 F.2d 286, 293-94 (1st Cir. 1979) (concluding that trial delay caused in part by a “devastating snowstorm” was not chargeable to the government in a constitutional speedy trial analysis).5 In this case, the pandemic made it unsafe for all witnesses and other trial participants to come to court for a period of

2017See, e.g. , McDonald v. Commonwealth , 274 Va. 249 , 255, 645 S.E.2d 918 , 921 (2007) (holding that appellant had waived his facial constitutional challenge under Rule 5:25); Powell v. Commonwealth , 182 Va. 327 , 336, 28 S.E.2d 687 , 691 (1944) (affirming express waiver of various constitutional rights, including rights to counsel, to trial by jury, to sequester the jury, and to speedy trial); Brown v. Epps , 91 Va. 726 , 737, 21 S.E. 119 , 122 (1895) (observing, in a Sixth Amendment challenge, that it is "beyond a doubt" that "a prisoner may waive many of his constitutional rights").

2017See, e.g. , McDonald v. Commonwealth , 274 Va. 249 , 255, 645 S.E.2d 918 , 921 (2007) (holding that appellant had waived his facial constitutional challenge under Rule 5:25); Powell v. Commonwealth , 182 Va. 327 , 336, 28 S.E.2d 687 , 691 (1944) (affirming express waiver of various constitutional rights, including rights to counsel, to trial by jury, to sequester the jury, and to speedy trial); Brown v. Epps , 91 Va. 726 , 737, 21 S.E. 119 , 122 (1895) (observing, in a Sixth Amendment challenge, that it is "beyond a doubt" that "a prisoner may waive many of his constitutional rights").

2005Therefore, we decline to summarily reject the brief, but we do not address the Fifth Amendment issue because the Sixth Amendment claim is dispositive. -7- “The right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of our adversarial system of criminal justice.” Maine v. Moulton, 474 U.S. 159, 168 (1985).

2005Therefore, we decline to summarily reject the brief, but we do not address the Fifth Amendment issue because the Sixth Amendment claim is dispositive. -7- “The right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of our adversarial system of criminal justice.” Maine v. Moulton, 474 U.S. 159, 168 (1985).

2005Fellers v. United States, 540 U.S. 519, 523-24 (2004).

2004Fellers v. United States, 540 U.S. 519 ,-, 124 S.Ct. 1019, 1022 , 157 L.Ed.2d 1016 (2004).

2022Even if Gheorghiu could be read to say that Weatherford held—in the context of a Sixth Amendment challenge to governmental interference with confidential attorney-client communications—that prejudice is merely a predicate to obtaining a judicial remedy, see United States v. Morrison, 449 U.S. 361 (1981), rather than a predicate to showing a violation of the right to counsel, see Gonzalez-Lopez, 548 U.S. at 146 , the result in this case is the same.

2022Even if Gheorghiu could be read to say that Weatherford held—in the context of a Sixth Amendment challenge to governmental interference with confidential attorney-client communications—that prejudice is merely a predicate to obtaining a judicial remedy, see United States v. Morrison, 449 U.S. 361 (1981), rather than a predicate to showing a violation of the right to counsel, see Gonzalez-Lopez, 548 U.S. at 146 , the result in this case is the same.

2023See Doggett v. United States, 505 U.S. 647, 648-50, 652 (1992) (measuring the length of delay from indictment until arrest for speedy trial purposes); see also United States v. Alexander, 817 F.3d 1178 , 1181 & n.1 (9th Cir. 2016) (applying a Sixth Amendment analysis to a claim challenging delay between indictment and arrest after noting that the length of delay in speedy trial claims is “ordinarily measured from the time of the indictment to the time of trial”).

2023See Doggett v. United States, 505 U.S. 647, 648-50, 652 (1992) (measuring the length of delay from indictment until arrest for speedy trial purposes); see also United States v. Alexander, 817 F.3d 1178 , 1181 & n.1 (9th Cir. 2016) (applying a Sixth Amendment analysis to a claim challenging delay between indictment and arrest after noting that the length of delay in speedy trial claims is “ordinarily measured from the time of the indictment to the time of trial”).

2017See, e.g. , McDonald v. Commonwealth , 274 Va. 249 , 255, 645 S.E.2d 918 , 921 (2007) (holding that appellant had waived his facial constitutional challenge under Rule 5:25); Powell v. Commonwealth , 182 Va. 327 , 336, 28 S.E.2d 687 , 691 (1944) (affirming express waiver of various constitutional rights, including rights to counsel, to trial by jury, to sequester the jury, and to speedy trial); Brown v. Epps , 91 Va. 726 , 737, 21 S.E. 119 , 122 (1895) (observing, in a Sixth Amendment challenge, that it is "beyond a doubt" that "a prisoner may waive many of his constitutional rights").

2017See, e.g. , McDonald v. Commonwealth , 274 Va. 249 , 255, 645 S.E.2d 918 , 921 (2007) (holding that appellant had waived his facial constitutional challenge under Rule 5:25); Powell v. Commonwealth , 182 Va. 327 , 336, 28 S.E.2d 687 , 691 (1944) (affirming express waiver of various constitutional rights, including rights to counsel, to trial by jury, to sequester the jury, and to speedy trial); Brown v. Epps , 91 Va. 726 , 737, 21 S.E. 119 , 122 (1895) (observing, in a Sixth Amendment challenge, that it is "beyond a doubt" that "a prisoner may waive many of his constitutional rights").

2017See, e.g. , McDonald v. Commonwealth , 274 Va. 249 , 255, 645 S.E.2d 918 , 921 (2007) (holding that appellant had waived his facial constitutional challenge under Rule 5:25); Powell v. Commonwealth , 182 Va. 327 , 336, 28 S.E.2d 687 , 691 (1944) (affirming express waiver of various constitutional rights, including rights to counsel, to trial by jury, to sequester the jury, and to speedy trial); Brown v. Epps , 91 Va. 726 , 737, 21 S.E. 119 , 122 (1895) (observing, in a Sixth Amendment challenge, that it is "beyond a doubt" that "a prisoner may waive many of his constitutional rights").

2017See, e.g. , McDonald v. Commonwealth , 274 Va. 249 , 255, 645 S.E.2d 918 , 921 (2007) (holding that appellant had waived his facial constitutional challenge under Rule 5:25); Powell v. Commonwealth , 182 Va. 327 , 336, 28 S.E.2d 687 , 691 (1944) (affirming express waiver of various constitutional rights, including rights to counsel, to trial by jury, to sequester the jury, and to speedy trial); Brown v. Epps , 91 Va. 726 , 737, 21 S.E. 119 , 122 (1895) (observing, in a Sixth Amendment challenge, that it is "beyond a doubt" that "a prisoner may waive many of his constitutional rights").

2024To establish a Sixth Amendment violation, “a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).

2024To establish a Sixth Amendment violation, “a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).

2023See Doggett v. United States, 505 U.S. 647, 648-50, 652 (1992) (measuring the length of delay from indictment until arrest for speedy trial purposes); see also United States v. Alexander, 817 F.3d 1178 , 1181 & n.1 (9th Cir. 2016) (applying a Sixth Amendment analysis to a claim challenging delay between indictment and arrest after noting that the length of delay in speedy trial claims is “ordinarily measured from the time of the indictment to the time of trial”).

2023See Doggett v. United States, 505 U.S. 647, 648-50, 652 (1992) (measuring the length of delay from indictment until arrest for speedy trial purposes); see also United States v. Alexander, 817 F.3d 1178 , 1181 & n.1 (9th Cir. 2016) (applying a Sixth Amendment analysis to a claim challenging delay between indictment and arrest after noting that the length of delay in speedy trial claims is “ordinarily measured from the time of the indictment to the time of trial”).

2023Our Court noted that the 7 Our Court in Shavin also noted that “such presumptive prejudice [without more] cannot alone carry a Sixth Amendment claim.” Shavin, 17 Va. App. at 269 (alteration in original) (quoting Doggett, 505 U.S. at 656 ).

2023Our Court noted that the 7 Our Court in Shavin also noted that “such presumptive prejudice [without more] cannot alone carry a Sixth Amendment claim.” Shavin, 17 Va. App. at 269 (alteration in original) (quoting Doggett, 505 U.S. at 656 ).

2023“It is well established that delay ‘approach[ing] one year’ is ‘presumptively prejudicial’ and requires further review.” Ali, 75 Va. App. at 35 (alteration in original) (quoting Doggett, 505 U.S. at 652 n.1); see also Miller v. Commonwealth, 29 Va. App. 625, 633 (1999) (analyzing the last three speedy trial factors after finding that a delay of about 13 months between the filing of the detainer and the defendant’s trial was presumptively prejudicial and required further review). -5- Here, because the time between appellant’s indictment and arrest exceeded a year, the length of delay is presump

2023“It is well established that delay ‘approach[ing] one year’ is ‘presumptively prejudicial’ and requires further review.” Ali, 75 Va. App. at 35 (alteration in original) (quoting Doggett, 505 U.S. at 652 n.1); see also Miller v. Commonwealth, 29 Va. App. 625, 633 (1999) (analyzing the last three speedy trial factors after finding that a delay of about 13 months between the filing of the detainer and the defendant’s trial was presumptively prejudicial and required further review). -5- Here, because the time between appellant’s indictment and arrest exceeded a year, the length of delay is presump

2022See Remmer v. United States, 347 U.S. 227, 229 (1954) (finding that private communication between jurors and outside persons about the pending matter is presumptively prejudicial); McGuire v. Howard, 203 Va. 965, 967-71 (1962) (reversing and remanding a case for a new trial where a juror took himself to the scene of the collision at issue, reenacted details of the motor vehicle collision, then drew a sketch for and described his findings to other jurors); Thompson v. Commonwealth, 219 Va. 498, 500 (1978) (explaining that reading or hearing the news about the trial does not “in every case amoun

2022See Remmer v. United States, 347 U.S. 227, 229 (1954) (finding that private communication between jurors and outside persons about the pending matter is presumptively prejudicial); McGuire v. Howard, 203 Va. 965, 967-71 (1962) (reversing and remanding a case for a new trial where a juror took himself to the scene of the collision at issue, reenacted details of the motor vehicle collision, then drew a sketch for and described his findings to other jurors); Thompson v. Commonwealth, 219 Va. 498, 500 (1978) (explaining that reading or hearing the news about the trial does not “in every case amoun

2022See Remmer v. United States, 347 U.S. 227, 229 (1954) (finding that private communication between jurors and outside persons about the pending matter is presumptively prejudicial); McGuire v. Howard, 203 Va. 965, 967-71 (1962) (reversing and remanding a case for a new trial where a juror took himself to the scene of the collision at issue, reenacted details of the motor vehicle collision, then drew a sketch for and described his findings to other jurors); Thompson v. Commonwealth, 219 Va. 498, 500 (1978) (explaining that reading or hearing the news about the trial does not “in every case amoun

2022See Remmer v. United States, 347 U.S. 227, 229 (1954) (finding that private communication between jurors and outside persons about the pending matter is presumptively prejudicial); McGuire v. Howard, 203 Va. 965, 967-71 (1962) (reversing and remanding a case for a new trial where a juror took himself to the scene of the collision at issue, reenacted details of the motor vehicle collision, then drew a sketch for and described his findings to other jurors); Thompson v. Commonwealth, 219 Va. 498, 500 (1978) (explaining that reading or hearing the news about the trial does not “in every case amoun

2022See Remmer v. United States, 347 U.S. 227, 229 (1954) (finding that private communication between jurors and outside persons about the pending matter is presumptively prejudicial); McGuire v. Howard, 203 Va. 965, 967-71 (1962) (reversing and remanding a case for a new trial where a juror took himself to the scene of the collision at issue, reenacted details of the motor vehicle collision, then drew a sketch for and described his findings to other jurors); Thompson v. Commonwealth, 219 Va. 498, 500 (1978) (explaining that reading or hearing the news about the trial does not “in every case amoun

2020See Brown v. Commonwealth, 68 Va. App. 58, 70-71 (2017) (holding appellant waived right to appeal alleged Sixth Amendment violation as part of his conditional guilty plea where he did not specify that ground in his plea agreement, and he did not obtain the permission of the Commonwealth and the trial court to that condition of the guilty plea); see also Johnson v. Commonwealth, 38 Va. App. 137, 143-44 (2002) (recognizing that when a defendant pleads guilty, he waives all non-jurisdictional defenses unless the trial court and Commonwealth agree that defendant may appeal a specific issue); Davis