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Absence of prejudice: Conviction secured by unlicensed prosecutor OK

Lawyer and judge in courtroom

In a case of first impression, a Virginia circuit court has upheld a felony conviction secured by a prosecutor who was unlicensed during the trial.

After reviewing similar decisions from other jurisdictions, Judge David A. Oblon of the Fairfax County Circuit Court found that all but one held that dismissal is not required in a criminal case absent a showing of prejudice to the defendant.

Oblon concluded that the defendant “failed to prove the prosecutor’s administratively unlicensed status prejudiced any of his substantive rights” and denied the defendant’s motions to set aside the verdict and order a new trial.

The June 30 opinion is Commonwealth of Virginia v. Flores (VLW 022-8-025).

The conviction

Yovani Cardenas Flores was convicted of two counts of aggravated sexual battery after a three-day bench trial in late January 2022.

Prior to sentencing, the assistant commonwealth’s attorney who prosecuted the case informed Flores’s counsel that she had been administratively suspended from practicing law between Oct. 1, 2021, and Feb. 1, 2022, for failure to pay her bar dues.

The prosecutor paid the fees and was immediately reinstated to practice.

In late April 2022, Flores filed a motion to set aside the verdict and obtain a new trial.

Nullity rule

Flores sought to extend the civil nullity rule to criminal cases.

Under the civil nullity rule, Oblon noted, “[r]epresentative actions in court are a legal nullity unless performed by a licensed attorney.”

The judge acknowledged this result was “harsh,” and said its application “has not been without controversy.”

Oblon looked at decisions on the extension of the civil nullity rule from New York, Minnesota and Illinois, as well as from a handful of federal courts.

“An unlicensed lawyer-prosecutor who fairly wins a conviction in a trial brought by a grand jury, defended by a licensed criminal defense attorney, and adjudicated by a judge is the antithesis of a poor performing attorney.”

— Fairfax County Circuit Court Judge David A. Oblon

In every case except the Illinois ruling, he said, the court held that “an unlicensed prosecuting lawyer does not cause the dismissal of the criminal case he or she prosecuted per se. There must be a showing of particular prejudice to the defendant.”

In the one outlier, the Illinois Appellate Court relied on a 1925 Illinois Supreme Court decision to extend the civil nullity rule to vacate a conviction obtained by an unlicensed prosecutor.

Oblon said federal courts that considered the issue favored New York’s approach, for which “the lynchpin is the absence of prejudice to the defendant.”

The judge pointed to a decision from the Southern District of New York that distinguished the Illinois case as guided by state common law and noted “that no federal court ever declared a right to a licensed prosecutor under the Due Process Clause of the Fourteenth Amendment.”

Relaxed rules

Citing a Supreme Court of Virginia decision rejecting a request to vacate a conviction on the basis that a grand jury foreman hadn’t signed the indictment, Oblon inferred that the court “would decline to extend the civil per se voidness rule to criminal cases.”

“This is consistent with Virginia’s modern relaxation of absolute rules resulting in overreactions to a prejudice-free procedural trespass,” the judge opined.

Oblon said a conviction obtained by an unlicensed prosecutor could be vacated if the defendant shows the prosecutor engaged in improper conduct which prejudiced the defendant’s substantive rights and denied him or her a fair trial.

The judge cited several reasons for this holding. First, he said “a defendant has no constitutional right to a licensed prosecutor as he does to a licensed defense attorney.

“An unlicensed lawyer-prosecutor who fairly wins a conviction in a trial brought by a grand jury, defended by a licensed criminal defense attorney, and adjudicated by a judge is the antithesis of a poor performing attorney,” Oblon wrote.

The judge noted that Virginia’s constitution has no explicit bar admission requirement for an elected commonwealth’s attorney, just as an elected sheriff need not have any law enforcement certification.

Even in cases where a licensed defense attorney provides ineffective assistance, courts will not automatically set aside a conviction without a showing of prejudice, the judge said.

Extension of the nullity rule to criminal cases “would incentivize a lot of current inmates to research the Bar records of their prosecutors,” Oblon wrote. “[T]he remedy for an unlicensed prosecutor should not logically exceed that of a deficient, but licensed, defense attorney.”

The judge also noted that Virginia treats civil procedure differently than criminal, citing different the jury sizes and evidentiary rules, as well as the existence of less extreme remedies to discourage prosecutions by unlicensed lawyers, such as criminal prosecution.

‘No double standard’

Attorneys Daniel Harvill of Manassas and Glenn Wainer of Falls Church represented Flores. Wainer said he was disappointed in the decision because “there should be no double-standard for prosecutors.”

Harvill agreed, adding that unlike with private attorneys, there are no market forces to “weed out” incompetent prosecutors and that licensure should be a minimum competency standard.

Stephen Armstrong, a criminal defense attorney in Chesterfield, said that his initial reaction to the ruling was that “an administrative oversight doesn’t mean injustice” and that federal cases holding that a criminal defendant has no right to a licensed prosecutor made sense.