Fairfax plea deals face a potentially rocky road when judicially rejected, says Virginia criminal lawyer

Fairfax plea deals — and settlement negotiations in all Virginia jurisdictions — are not worth the paper they are written on if the judge is going to reject the party-agreed sentence or sentencing cap. As a Fairfax criminal lawyer, I know that if a Virginia judge rejects a negotiated sentencing agreement (pursuant to Virginia S.Ct. Rule 3A:8), that response must be based on the specific case, and not on the judge’s level of agreement or not with the overall policies and procedures of the jurisdiction’s commonwealth’s attorney / chief prosecutor, nor on the judge’s view of the individual prosecutor nor criminal defense attorney on the case. I tell my clients that the time to celebrate (or at least to breathe a sigh of relief) is not when a favorable guilty plea, no contest / nolo contendere plea or Alford plea deal is reached, because we must still convince the judge to accept the negotiated sentence or sentencing cap. Nor should a victory dance be executed when a more favorable-seeming judge is assigned to the case, because even the more defendant-favorable seeming judges do not intend to be favorable to defendants rather than to their judicial oath, and because even the less heavy handed-seeming judges have their hot button issues, their own primal reactions to what they perceive to be horrendous human misbehavior, and their own experiences or friends and family members that have encountered similar behavior to the prosecuted conduct.

Activist judges do not merely come in the form of so-called liberals

Many politicians rail against so-called activist judges, painting them as creating law rather than following the law. However, activist judges can also be the ones that are more likely to reject defendant-favorable plea deals. Yes, Virginia judges generally cannot reject any aspect of a plea deal other than the parties’ agreements about sentencing, but sentencing is a major part of how the case impacts the criminal defendant’s life, not only involving the defendant’s liberty, but also their reputation, financial and career impact, and effect on one’s security clearance, military status and immigration status. If a judge at first thinks a party-agreed sentence sounds like an agreement from a prosecutor whose head should be examined, the judge will hopefully enunciate his or her concerns to the parties rather than rejecting the deal outright. With Fairfax plea deals in Circuit Court, at least some of the judges on that bench will be adverse to accepting a party-agreed sentence that a predecessor judge rejected. At that point, the Virginia criminal defense lawyer needs to convince the prosecutor to alter the plea deal rejected by the first judge in a way that causes as little extra harm to the defendant as possible, for instance by altering the probation length and probation terms and conditions, rather than adding active jail time to the mix.

Judicial review of Fairfax plea deals in chambers or from the bench does not replace the parties’ in-depth review of the entire case, including speaking with witnesses, obtaining and reviewing evidence / discovery, and analyzing the applicable law

Virginia judges are generalists, not only handling criminal cases, but also a wide range of civil cases, ranging from mind-numbing financial collections actions to gripping civil rights and civil liberties civil actions. When a judge is reviewing Fairfax plea deals or plea negotiations in any other jurisdiction, s/he may be switching gears from a non-criminal case, whereas prosecutors and public defender lawyers are handling criminal cases all the time, and plenty of criminal defense lawyers are mostly handling criminal cases. (Nearly 100% of my cases are criminal defense, for instance.) The judge will hopefully consider that, and the defense lawyers need to persuade judges while remembering that not all judges know the relevant criminal law inside and out. That alone is a good reason for Virginia criminal defense lawyers to file with the court well-considered and persuasive motions and legal memoranda.

A tale of two perspectives on fingerprint evidence

Sometimes a prosecutor explains a lenient-seeming plea deal to the court, by addressing the difficulty the prosecution will have in obtaining a conviction at trial. Hyrum Rodriguez had the misfortune — after an alleged attempted kidnapping of a four year old child — of having his thumbprint and palm print respectively found on the exterior and interior of the alleged victim’s home window frame. Commonwealth of Virginia v. Hyrum Rodriguez, Fairfax County Circuit Court No. FE-2024-69 (May 30, 2024). As can happen with Fairfax plea deals, the reviewing judge not only rejected the party-agreed sentencing cap, but also wrote a lengthy explanation for his rejection, including: “Kidnapping a four-year-old child — stealing her from her bed in the middle of the night — is at the dead center of concern. A criminal justice system that cannot protect a four-year-old child in such circumstances is a failure.” The court also adds that the prosecution acknowledges no litigation risk with the felony burglary charge. However, that is for the judge independently to review. First, presence of fingerprints does not establish whether the fingerprints were left on the date of the alleged attempted kidnapping or on a much earlier date. Second, assuming for argument’s sake that such fingerprints show that Rodriguez did enter the home on one date or another, that does not necessarily assure anything worse than a conviction for misdemeanor unlawful entry. Virginia Code § 18.2-121  , versus Virginia burglary statutes, which require not only an unlawful entry, but with intent to commit designate crimes. Virginia Code §§ 18.2-90, 18.2-91 and 18.2-92. Furthermore, seeing that the only evidence tying any crimes to Rodriguez were his fingerprints and the homeowner’s son having seen Rodriguez in the neighborhood before, that by no means rules out the skepticism with which fingerprint evidence is viewed all the more in society with revelations of the failings of fingerprint analysis. 

Knowing and persuading one’s judge

A very important watchword for criminal defense lawyers is “Know your judge.” With Fairfax plea deals, the judge who presides over a guilty or no contest plea proceeding is ordinarily going to be the sentencing judge. So long as the judge orders a presentence investigation report (PSR or PSI) — which is common with felony prosecutions — the Fairfax criminal lawyer is going to know who their judge will be for sentencing, and will be able to focus their written and oral advocacy on that judge. This means focusing the more so-called law-and-order judge on the real risks — rather than amorphous risks — faced by the prosecutor, and the benefits to the alleged victim of the plea deal. If the alleged victim might argue to the judge that the plea deal is too lenient, then the criminal defense lawyer can point out the extent to which the sentence can still be made sufficiently firm without needing substantial active incarceration time versus to impose a long enough probation period and demanding enough probation conditions (including intensive probation supervision) that will risk revocation of probation for any non-compliance. (Certainly, a Virginia criminal defense lawyer wants to advocate for as lenient a sentence as possible for their client, but the lawyer should also talk with their client before filing any sentencing memorandum and before the sentencing hearing about the extent to which it will be more persuasive to address with the judge possible probation length and conditions that will more readily accepted by the particular judges.)

Fairfax criminal lawyer Jonathan Katz is relentless in pursuing your best defense against Virginia DUI, felony and misdemeanor prosecutions. Secure your free in-person confidential initial consultation with Jon Katz about your court-pending prosecution at 703-383-1100, info@BeatTheProsecution.com and (by text) 571-406-7268.