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Fairfax criminal plea deals and judicial oversight of those agreements

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Fairfax criminal plea deals — and all Virginia plea deals — are not guaranteed to be accepted by the judge

Fairfax criminal plea deals — and plea negotiations in all Virginia courts — do not bind judges unless they agree to be bound. As a Fairfax criminal lawyer, I know that the trial just must permit the defendant to enter a guilty or nolo contendere / no contest plea to one or more pending counts against the defendant, but the judge has has no obligation to accept such a plea to “any lesser offense included in the charge upon which the accused is arraigned.” Virginia Code § 19.2-254.  “Upon rejecting a plea agreement in any criminal matter, a judge shall immediately recuse himself from any further proceedings on the same matter unless the parties agree otherwise.” Id. Watch out, then, if a Virginia judge or other judge tells a defendant at his or her guilty or no contest plea hearing that the defendant will not be permitted to withdraw his or her plea even if the judge will not accept any jointly-recommended sentence by the parties.

Some judges recently shared their insight on handling criminal plea deals

At this week’s Webex continuing legal education (CLE) seminar with several Fairfax County judges addressing their insights for the lawyers practicing before them, one judge from each of the court levels addressed how they approach agreed Fairfax criminal plea deals. A Circuit Court judge who seems fully ready to sentence firmly when he sees such sentencing as called for, indicated his general practice to accept plea deals and joint sentencing recommendations from the prosecutor and Virginia criminal defense lawyer. This judge pointed out that his prior experience in prosecuting and in criminal defense resulted in his knowing how much time and effort the opposing lawyers can put into reaching a deal, and he is inclined not to disturb such agreements. This, then, means the possibility of a substantial disparity between how this judge might have sentenced with and without a party-agreed sentence.

Not all judges will accept a plea deal

At this same CLE, a General District Court judge and Juvenile and Domestic Relations District Court judge mentioned instances where they or their colleagues do not automatically accept Fairfax criminal plea deals. One judge mentioned consideration of such factors as the risk of harm to others caused by the Virginia criminal defendant’s actions, and considering the victim (I suppose it is acceptable to use that word “victim” once the defendant has been convicted.) Another judge mentioned sometimes wanting to know why a seemingly very defendant-lenient disposition is being proposed, and being able to be persuaded when the prosecutor mentions case weaknesses that the prosecution would expect to have at trial.

What happens when a new District Court judge also rejects the parties’ plea

The above-addressed Virginia Code § 19.2-254 provides that a judge shall recuse himself or herself from the case upon rejecting a criminal case plea agreement “unless the parties agree otherwise”. Id. The General District Court judge at this CLE underlined that after the first judge recuses herself or himself for such a reason, the parties should not expect a recusal from the second judge if a Fairfax criminal plea agreement is presented to that second judge rather than immediately proceeding to trial.

Why do plea deals happen at all rather than Virginia criminal cases simply going to trial?

Virginia criminal defense lawyers and prosecutors usually have bets to hedge on each of their sides. That is the purpose for Fairfax criminal plea negotiations. Some criminal defendants instead will take the approach of a million spent on defense but not a penny in tribute to the opposition, out of principal or otherwise. Regardless of the criminal defendant’s motivation to avoid or seek reaching a plea agreement, I abide by that decision and fully fight for my client’s best possible outcome, have taken hundreds of cases to trial, and have won many of them.

Fairfax criminal lawyer Jonathan Katz thrives in battling for people prosecuted for alleged Virginia DUI, felony and misdemeanor offenses. Get great insights into your defense and learn the positive difference Jon Katz can make for your defense, by arranging a free in-person consultation with Jon about your court-pending case, at 703-383-1100