Virginia Lawyers Weekly VA Lawyers Weekly
Where the commonwealth’s attorney prosecuted defendant’s case while her license was suspended for not paying bar dues, a defense motion to set aside the guilty verdict is denied.
A conviction obtained by an unlicensed prosecutor will not be voided unless the prosecutor engaged in improper conduct and the conduct denied the defendant a fair trial.
Statement of the case
“The Virginia State Bar suspended the law license of the Assistant Commonwealth’s Attorney who prosecuted this Aggravated Sexual Battery case during the entire pendency of the trial. She had failed to pay her Bar dues.
“The issue before the Court is whether the Court’s guilty verdicts should be set aside because of her then-unlicensed status.
“In this matter of first impression in Virginia, the Court holds a prosecutor’s unlicensed status will not result in setting aside an otherwise valid felony conviction unless (1) the prosecutor engaged in improper conduct, and (2) that such conduct prejudiced the defendant’s substantive rights, denying the defendant a fair trial.
“The Court finds Defendant Yovani Cardenas Flores … failed to prove the prosecutor’s administratively unlicensed status prejudiced any of his substantive rights and, therefore, will deny his ‘Motion to Set Aside Verdict and for a New Trial.’”
Legal nullity
“It is unlawful to practice law without being ‘authorized or licensed.’ … In the civil context, the law is settled. Representative actions in court are a legal nullity unless performed by a licensed attorney. … However, the existence of a settled rule in civil law does not mean that the rule should extend to criminal law. …
“While this may have been the first time an unlicensed lawyer prosecuted a criminal case in Virginia, this unfortunate occurrence happened in New York, Minnesota, Illinois, and in a handful of federal courts. In all those cases a convicted defendant asked for reversals of convictions, as does Mr. Cardenas Flores in the present case.
“Every jurisdiction to consider the question – except for Illinois – 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 a particular prejudice to the defendant.”
The bulk of the authorities have declined to extend the civil nullity doctrine to criminal cases. The issue is one of first impression in Virginia.
“This Court infers the Supreme Court of Virginia would decline to extend the civil per se voidness rule to criminal cases by projecting the trajectory of the law from Reed v. Commonwealth, 281 Va. 471, 480-82 (2011).
“In Reed, a defendant sought to vacate his criminal conviction on the basis that the grand jury foreman did not sign his indictment. The high court declined to extend the civil Aguilera nullity rule then – even though it could have held that an unsigned indictment, like an unsigned civil complaint, was a legal nullity. It did not do this. …
“ This is consistent with Virginia’s modern relaxation of absolute rules resulting in overreactions to prejudice-free procedural trespasses.”
Ruling
“The Court agrees with the conclusion of the state and federal courts which upheld convictions procured by prosecutors unlicensed to practice law. It declines to be the first Virginia court to extend the civil nullity rule to criminal cases.
“This Court holds that for a defendant to gain a new trial on the basis that the prosecutor was unlicensed, a defendant must show (1) the prosecutor engaged in improper conduct, and (2) that such conduct prejudiced the defendant’s substantive rights, denying the defendant a fair trial. …
“There are three reasons for this conclusion: first, a defendant has no constitutional right to a licensed prosecutor as he does to a licensed defense attorney; second, it is common to treat civil procedure differently than criminal procedure; and, third, the dismissal of a conviction is unnecessary to police the unauthorized practice of law. …
“In the present case, Mr. Cardenas Flores’ conclusory statements that the trial was ‘tainted’ by an unlicensed prosecutor is an appeal for a per se rule and does not prove prejudice.
“From everything proffered and argued at the motion to set aside the verdict, there was not even misconduct – the prosecutor changed jobs, thought she properly notified the Bar, but the dues notice went to her old employer, and she was late in paying her Bar dues.
“Importantly, this did not affect the prosecutor’s legal ability or any other aspect of her performance.”
The motion to set aside the verdict and for a new trial is denied.
Commonwealth v. Flores, Case No. FE-2021-388, -398, June 30, 2022, Fairfax County Circuit Court (Oblon). Eric Clingan, Katherine K. Ballou for the commonwealth. Daniel Harvill counsel for defendant, Glenn Wainer co-counsel for defendant. VLW 022-8-025, 10 pp.
