Commonwealth Attorney Flags Critical Need for Funding

The Commonwealth’s Attorney Steve Descano said his overworked, understaffed office is in a state of crisis, which could have deep ramifications for public safety.

“Potentially innocent people could be wrongfully convicted, or guilty people could be left on the street, making our community more vulnerable,” he told the Board of Supervisors in a meeting on Tuesday.

The short-term solution he proposed involves hiring 20 staff for about $2 million. He said this would ensure the office does not fall behind when felony trials resume in November, after being postponed since March due to the coronavirus. The 20 staff would not be enough, for example, to handle the influx of  potential evidence that would need independent review if every police officer starts wearing a body camera.

To ramp up the number of cases his office can prosecute thoroughly and ethically, Descano said he needs 137 attorneys and support staff, which would cost $19.1 million.

Fairfax County Board of Supervisors said they were surprised to hear Descano’s claim of unethical prosecutions and were experiencing a case of “sticker shock,” said Supervisor James R. Walkinshaw, of Braddock District.

“I think we’re all in a state of shock here,” Board of Supervisors Chairman Jeffrey C. McKay said.

A plan would need to be developed to address how these changes would impact other areas of law enforcement and justice, including the police department and the Fairfax County Attorney’s office, he said.

“While it is an emergency, we cannot respond to it like an emergency,” McKay said.

Supervisor John Foust, the Dranesville District Representative, told Descano: “You’ve found the problem, but I’m not sure you’ve identified the solution.”

The Office of the Fairfax Commonwealth’s Attorney prosecutes crimes that occur in Fairfax County and felonies that occur in Fairfax City and the towns of Herndon and Vienna. It tries cases in the county’s district and circuit courts, as well as the Juvenile and Domestic Relations District Court. The office works closely with state, county and local police departments.

But over the course of the year, Descano said he has had to cut back the number and scope of cases his office can prosecute.

The issue is a lack of state and local funding. Fairfax — the biggest jurisdiction in the state — receives less state funding in part because it tries to divert defendants from the criminal justice system. The state funds positions based on the number of defendants who make it to court and the number who are sentenced, Descano said.

He says local funding is low compared to surrounding jurisdictions, which spend up to four times what Fairfax County spends.

“A resident of Fairfax County can spend more on a gallon of milk than on the prosecution of crimes,” he said.

The ratio of officers to prosecutors is also imbalanced: For every prosecutor, there are 33 sworn officers making arrests, meaning prosecutors cannot keep up with the rate of arrests.

“We don’t have the time to do the cases properly,” he said. “The only way to give us more time is to add more staff. The reason we need this is without time, bad things can happen.”

These “bad things” include focusing on getting dockets cleared and farming out independent reviews of evidence to police officers.

“In essence, there were officers making case decisions as if they were attorneys, without the independent review of attorneys,” he said. “We like to think that has never happened in Fairfax County, but I’ve seen evidence that that has happened.”

Supervisor Pat Herrity, the Springfield District Representative, said he needs an executive session to be shown where the ethical issues are.

“I had not heard that before this issue came up and I think we ought to peel the onion on that skin a little bit,” he said.

Deputy County Executive David Rohrer, a former police chief for Fairfax County, defended previous commonwealth’s attorneys as well as the police department.

“I only observed the highest integrity and ethics in their staff,” he said.