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Editorial: A trap hidden in plain sight

Unhappy with a January decision by the Supreme Court of Virginia, four leaders of the House Courts of Justice Committee have set a clever trap for any judge wanting to keep his or her seat.

And they’ve hidden it in plain sight.

In Hernandez v. Commonwealth, the high court said judges have the authority to defer judgment in a criminal case and ultimately dismiss charges. This approach can be used by a judge, in his or her discretion, as an incentive to the defendant: You’re guilty, but I’m not going to enter judgment. If you clean up your act and behave for a year, I’ll dismiss the charge.

It’s a useful tool that can be found in the Virginia Code – there are several deferred judgment statutes that let a judge give a first-time drug or alcohol offender a second chance.

It’s important to note what did not happen in Hernandez. It was a case involving an assault on a police officer (a violent felony), and the circuit judge below did not defer judgment. But in the appeal, the high court made one of those line-in-the-sand rulings that courts sometimes make to preserve their authority.

The trouble is, felony assault on a cop is one of the crimes for which the General Assembly has established a mandatory minimum sentence. So there you have it, a tug of war between two branches of government: Legislators saying there are crimes for which a defendant must do time, and justices saying judges have the authority to hold back imposing those very sentences.

The four delegates – the Courts committee chair and chairs of three subcommittees – have figured out a way to make sure that the power given to judges in Hernandez is never used.

In late April, they sent a letter to every circuit and general district judge who will be up for re-election by the Assembly in 2012.

The Hernandez case is “of great interest” to them, the four said. If you seek re-election, you will be asked about the case. They gave this notice, they said, so “there will be no surprises, and to be fair to you, we wish to inform you now, so you will be able to come prepared.”

If a judge has applied Hernandez, he or she has some homework to do. The delegates said they will ask a simple question:

“1. Identify each case in which deferred disposition was granted pursuant to the Hernandez decision.”

For each instance, the judge must provide the original charges, the reason for applying Hernandez, the length of the deferral and the ultimate disposition of the case. A judge need not explain any decision made under the existing deferred judgment statutes.

That trap is so easy to see, even the least sophisticated judge in the commonwealth can’t miss it. And the way to beat it is easy, too. If you don’t ever apply Hernandez, you don’t ever get caught.

One of the authors of the letter told our reporter that the delegates wanted to avoid another “Annunziata situation.”

In 2002, then-Judge Rosemarie Annunziata of the Virginia Court of Appeals came to Richmond for her re-election interview, only to be blindsided by delegates demanding an explanation of an appeals court panel decision and two dissents she had authored. She had no warning.

But there is a big difference between Annunziata’s case and this letter. There, a judge was required to explain something from the past, decisions that were already in the books. The Hernandez letter affects the future and applies to decisions the judge has not yet made.

“Judicial independence” is a hoary topic that always gets lip service at bar meetings. Bar leaders get up and say the proper things about the need for an impartial judiciary removed from politics. Those in attendance nod sagely.

Here, you have a band of four legislators, acting up front and providing plenty of notice, who are putting on an impossible squeeze: Should Virginia’s judges be more concerned about their own careers and continued employment or about doing justice, if there are the appropriate circumstances in a case to defer judgment?
That’s not fair and that’s not right.

So where are Virginia’s bar leaders on this Hernandez trap?

Who knows the proper things to say in the face of a targeted, back-door effort to nullify a Supreme Court decision?

Right now all we hear is the sound of crickets.


  1. The letter sent to judges was and is a bad idea. It looks like an effort to intimidate and engage in indirect legislation. Because the effort to overturn Hernandez legislatively failed, this is the latest tactic. It’s flat out wrong.
    The letter should be withdrawn, and members of the Bar need to speak out against this power-play.

  2. The good news is there is a General Assembly election this fall.

    The Bad News is the voters will probably be stupid.

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