Court to hear 2 more cases on sanctions set by Griffith

By Peter Vieth
Published: May 25, 2009

The Supreme Court of Virginia will hear the appeals of two more lawyer sanction cases involving a controversial former circuit judge who sought to control what he saw as improper tactics by counsel.

The high court has had four prior cases involving former Norfolk Circuit Judge Charles D. Griffith Jr., and two new appeals are pending.

In both of the new cases, Griffith smacked lawyers with contempt sanctions for presuming the judge would grant agreed motions for postponement of a trial.

An appeal of a $50 fine for contempt of court by Norfolk attorney Gordon A. Zedd is the latest case to reach the Supreme Court from Griffith’s courtroom. The high court granted Zedd’s writ May 6. Zedd’s contempt appeal joins a similar action filed by Virginia Beach lawyer Kenneth L. Singleton, who was fined $250.

In both cases, the attorneys told their clients not to appear for scheduled trial dates, assuming Griffith would postpone the trials based on agreements with prosecutors that the cases could be continued. In Singleton’s case, Singleton himself also failed to appear, leaving it to the prosecutor to present the agreed continuance order.

Griffith found both lawyers in contempt. “You do understand that nothing you talk about between counsel is an order until a judge says it’s an order, right?” Griffith said to Singleton before holding him in contempt.

In both cases, the Court of Appeals affirmed the findings of contempt. On appeal to the Supreme Court, both attorneys claim there was no evidence of any intent to obstruct or interrupt the administration of justice.

Two on recusal

Two earlier appeals that reached the Supreme Court involved efforts by Norfolk lawyer Allan D. Zaleski to have Griffith recuse himself from criminal cases.

In the first appeal, Griffith’s decision not to recuse himself was upheld by the high court in 2004. In that case, Commonwealth v. Jackson, 267 Va. 226 (2004) Griffith presided over a probation revocation hearing even though he had been the commonwealth’s attorney when the defendant was originally convicted of drug possession. The Court of Appeals found the decision not to recuse was an abuse of judicial discretion as a matter of law, but the Supreme Court of Virginia reversed. The justices found the revocation was a “separate proceeding” from the original criminal case and there was no showing of bias or prejudice.

That decision didn’t end the battle between Griffith and Zaleski in the Jackson case, however.

Zaleski sued the state’s Judicial Inquiry and Review Commission seeking an informal opinion that Griffith had cited to deny the recusal motion. A Richmond Circuit Court judge agreed with Zaleski that the JIRC opinion should be made public, but the Supreme Court reversed in a 2005 unpublished order, holding that JIRC informal opinions were confidential.

One on case-handling

Meanwhile, the fallout from another tussle between Zaleski and Griffith over recusal was making its way to the Supreme Court. This time, Griffith’s case-handling practices did not fare as well on review.

In Wilson v. Commonwealth, 272 Va. 19 (2006), Griffith took strong exception to Zaleski’s efforts to avoid having his client tried by Griffith. Zaleski had asked for a jury trial for his client when he learned the case was being assigned to Griffith. Griffith termed that strategy “shenanigans” and sought to have Zaleski removed from the court-appointed counsel list. When the parties tried to present a plea agreement at the start of trial, Griffith refused to hear it.

He also refused to recuse himself.

The Supreme Court concluded that Griffith had exhibited a personal bias or prejudice against Zaleski. Griffith’s actions “raised concerns about the judge’s impartiality in the case and about the public’s perception of his fairness in the case,” wrote Justice Elizabeth B. Lacy on behalf of the unanimous court. The case was remanded with instructions that any new trial be set before a different judge.

No warning required

A civil action provided the setting for the next Griffith case to make it to the high court.

Griffith ordered attorney John J. McNally to personally pay legal fees and costs incurred by his adversary when McNally’s client pulled the plug on a trial by filing for bankruptcy on the evening before the trial date.

The court made it clear that attorneys have no obligation to warn their opponents or the court when their clients are considering bankruptcy. In addition, the lawyer’s filing of a witness and exhibit list, even when he knew there might not be a trial, was no cause for sanctions, the court held in McNally v. Rey, 275 Va. 475 (2008). “[T]he record before this Court is devoid of any evidence that supports the circuit court’s award of sanctions,” wrote Virginia Chief Justice Leroy R. Hassell Sr.

Griffith served one eight-year term on the bench. Prodded by Zaleski, who questioned Griffith’s judicial temperament, the General Assembly declined to reappoint Griffith in 2008.

Griffith promptly returned to the familiar role of prosecutor. He now practices as an Assistant Commonwealth’s Attorney in Virginia Beach.

A former Assistant U.S. Attorney, Griffith was elected Norfolk’s Commonwealth’s Attorney in 1992 as a Republican. Re-elected twice, Griffith then was appointed to the circuit court bench in 2000.

Virginia Lawyers Weekly

Court to hear 2 more cases on sanctions set by Griffith

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