Judges face scrutiny before courts committees

A Bedford judge came to make amends for a temper outburst and found himself – alongside his local commonwealth’s attorney – defending his court’s sentencing practices.

A Virginia Beach judge complained he was unfairly forced to defend accusations about a bitter custody case more than 10 years old.

A Fairfax County judge traded jabs with his local chief prosecutor, who contended the judge is too quick to reject evidence in DUI cases.

The three were among 40 trial judges who appeared for interviews before members of the Virginia General Assembly Friday, all facing re-election in the 2014 Assembly session. The session produced conflict about the role of sentencing statistics in evaluating judges and debate over whether judges should be teaching legal education seminars.

Bedford Circuit Judge James W. Updike had come prepared with contrite comments and about 20 supporters from the legal community as he sought to atone for his angry treatment of a young attorney in 2009. He said he “never imagined” he would encounter testimony that he was too lenient in sentencing.

Virginia Beach Circuit Judge H. Thomas Padrick Jr. was the target of an advocacy group for child crime victims. The group’s spokesperson claimed Padrick ordered a mother of three young children to jail in 2003 for failing to pay a court-ordered fee in a bitter custody battle.

Padrick explained the case was hard fought case by lawyers on both sides, but he thought it “unfair” to have to defend his ruling in a 10-year-old case without preparation.

In a third dramatic scene, Fairfax General District Judge Ian M. O’Flaherty came under fire as Commonwealth’s Attorney Ray Morrogh accused him of setting an unreasonably high bar for DUI evidence and coaching defense lawyers on how to win cases.

Morrogh claimed O’Flaherty dismisses approximately 80 percent of DWI charges. “The breath certificates don’t mean anything to him,” Morrogh said, explaining O’Flaherty was insisting on a state expert in every case involving an alcohol breath test.

Morrogh questioned O’Flaherty’s appearance at a May continuing legal education session where he offered tips for defense attorneys on how to attack prosecution evidence. “It just puts the prosecution in an awful position,” Morrogh said.

O’Flaherty said his CLE remarks were an effort to share his views on the law. “I believe the status of the law at the moment is very difficult for the prosecution,” he said, citing his views of witness confrontation requirements.

O’Flaherty defended comments he made to an assistant commonwealth’s attorney who, according to the judge, said she had been directed to try every DWI case. O’Flaherty said he simply reminded the lawyer of her independent ethical obligation to evaluate cases. Morrogh claimed O’Flaherty raised his voice and threatened to file a bar complaint against the prosecutor.

One legislator suggested to Morrogh the incident was best directed to the Judicial Inquiry and Review Commission. Another told O’Flaherty his advice might better have been conveyed to the prosecutor in private.

It is unclear what impact Morrogh’s attack on O’Flaherty will have on his re-election chances.

Del. Ben Cline, R-Amherst – chairing the judicial interview session – said he hoped Morrogh had taken his complaints to the Fairfax delegation, but Fairfax lawyers and legislators privately said Morrogh passed up the chance to do so. The 26 legislators from Fairfax County met Dec. 10, but Morrogh reportedly did not attend.

Sen. Bill Stanley, R-Moneta, who said he had practiced before O’Flaherty, said he found the judge to be fair and considered his plain-spoken style to be “refreshing.”

“What I read in his dissertation to the defense bar was helpful information,” Stanley said.

“While I understand Mr. Morrogh’s consternations, what I read in the dissertation that he gave to the defense bar was practical knowledge, and I don’t see it in any negative light,” Stanley said.

After the hearing, Fairfax lawyers took pains to defend O’Flaherty as a fair and community-minded judge who is often tough on crime.

“He’s anything but a shill for the defense,” said Peter D. Greenspun.

“He is known for giving tough sentences, and will do so after insuring that the defendant has had a fair hearing,” said Manuel E. Leiva, president of the Hispanic Bar Association of Virginia.

It’s my understanding that Judge O’Flaherty is following the law and properly dismissing cases the commonwealth failed to prove, said Vernida R. Chaney with the Northern Virginia Black Attorneys Association.

“I’ve always found him to be exceedingly fair,” said Del. Scott A. Surovell, D-Fairfax, a lawyer who is not on the House Courts Committee. “Judge O’Flaherty knows the rules of evidence and he expects everyone else to know them,” he added.

“His courtroom demeanor and temperament can’t honestly be questioned,” said Chief Public Defender Todd Petit.

Several lawyers noted that O’Flaherty is known to jail litterbugs and was among the first judges to give jail time for high-speed cases.

David Bernhard said defense lawyers are concerned that similar complaints would tend to intimidate judges.

“The legal community has to ask itself whether we want to have a strong independent judiciary or whether we want to have judges be afraid to give voice to their conscience,” Bernhard said.

The Assembly will elect judges near the March 9 close of the 2014 session.