Fairfax plea negotiating- Expect the Circuit Court judge to asks if the purported victim agrees to the agreement

Fairfax plea negotiating — as in the rest of commonwealth — is an art that involves not only the Virginia criminal defendant, but also the criminal defense lawyer, the prosecutor / assistant commonwealth’s attorney, the purported victim(s) and the judge. On top of that are the victim witness advocates whose mere presence in the courthouse can influence the purported victim not to communicate with the cirminal defense lawyer. I warn my clients not to breath a sigh of relief too quickly once we reach a favorable case settlement agreement, because the judge can accept or reject the jointly recommended sentence or sentencing cap that has been reached by the defense and prosecution. As a Fairfax criminal lawyer, I am always ready to engage in persuading the judge about why the parties’ sentencing agreement should be accepted, to persuade the next judge to accept the sentencing agreement if the first judge rejects the deal and recuses themselves from the case (which the judge must do, unless the plea agreement was made non-binding on the judge or if the parties still agree to proceed befor the rejecting judge), and, as always, to proceed to trial.

Why are Virginia judges permitted to reject party-agreed sentences?

Fairfax plea negotiating must consider that Virginia judicial rejections of plea deals are permitted by law so long as the judge either (1) makes clear at the time of accepting a guilty, no contest or Alford plea that the judge is not bound by any sentencing agreement between the criminal defense lawyer and the prosecutor or (2) recuses himself or herself from handling the proceedings further unless the parties waive recusal. Virginia Code § 19.2-254; Virginia Supreme Court Rules 3A:8(c)(5), 7C:6(b), and 8:18(d).

Why do victims get so much of a say with the judge about Fairfax plea negotiating?

Fairfax plea negotiating needs to consider that crime victims “have the opportunity to be heard by law-enforcement agencies, attorneys for the Commonwealth, corrections agencies and the judiciary at all critical stages of the criminal justice process to the extent permissible under law.” Virginia Code § 19.2-11.01(A) (emphasis added). Hearing the crime victims does not equate with agreeing with nor rubber stamping their opinions and concerns. Nonetheless, elected chief prosecutors want to appear as responsive to the electorate, and probably know that they may face public outcries each time their line prosecutors make plea offers more lenient than what the victim wants. Judges’ oaths bar them from acting anything but independently in considering the victims’ preference, the prosecutor’s request and the Virginia criminal defendant’s request. Nonetheless, sometimes a judge will have rejected the plea deal or (if the parties agree to resume with the same judge rather than have them recused) sentenced even more harshly than the paries’ plea agreement absent being satisfied that the victim agrees with the plea agreement. 

One case and two very different sentencing hearing results with Fairfax plea negotiating

One of my Fairfax felony clients reached a plea deal with the proseutor for a no-active incarceration plea where the purported victim was adamently opposed to no active jailing, but the prosecutor felt strongly that the mitigation evidence I had presented justified a no active incarceration sentence for this Fairfax plea negotiating. The sentencing hearing included many questions from the judge to the prosecutor about why the plea deal was for no active incarceration when the victim had so vehemently told the judge in open court that they opposed no incarceration. Before this sentencing proceeding date, I had already filed with the judge as persuasive a sentencing memorandum I could have, which included my client’s personally written statement expressing his full remorse and acceptance of responsibility, and details of the vital self improvement / self rehabilitation in which my client had engaged (including substantial mental health counseling and scores of hours of community service). The judge not only ultimately rejected the plea deal that morning, but recused himself from the case on the spot rather than offering the parties the statutory opportunity to still proceed with the same judge. I think that his outright refusal to continue with the case was his signal that he was not going to sentence my client favorably.

Will a second Fairfax judge reject a plea deal that the first judge rejected?

Not long ago, I heard a Fairfax Circuit Court judge tell a prosecutor and defense lawyer in open court that in the works was a policy about how a second judge will handle a rejected plea deal that has not been modified by the time it reaches the second judge in Fairfax plea negotiating. First, Virginia prosecutors generally are permitted to withdraw from a plea deal at any time before the judge accepts it, so are not required to continue wtih plea negotiations after the first judge rejects the deal. Second, if the parties are willing to continue negotiating the case after the first judge rejects the deal, they are free to present the second judge with the same deal, or a deal that is slightly or materially modified. With my foregoing case, after the first judge rejected our deal, communications between the prosecutor and complainant ultimately yielded the complainant’s willingness for a new offer to be extended with a fifteen day active jail cap. In retrospect, that complainant willingness is the only thing that convinced our second judge to accept the plea deal. The judge made that very clear.

The Fairfax sentencing judge may ask some very pointed questions to know whether the complainant agrees with the plea deal

In a separate major instance of Fairfax plea negotiating, the judge was not satisfied with the language the prosecutor used for indicating the purported victim would go along with the parties’ defendant-favorable agreed deal. At the sentencing hearing, the judge asked the prosecutor several pointed questions to know the extent to which the purported victim was agreeing to the plea agreement rather than reluctantly going along with it, if even that. The complainant had long ago hired a lawyer to advocate for their interests, and that lawyer convincingly let the judge know that with all the proceedings that had already taken place in this hard-fought case that did not yield a plea deal until after months of battle, the complainant wanted the case to end that day. Here, too, the judge’s words before pronouncing a sentence that accepted the plea deal, made clear that the judge would have sentenced my criminal defendant client much more harshly absent this plea deal.

Prosecutors must exercise full prosecutorial independence

None of the foregoing permits a prosecutor to abdicate full prosecutorial independence with Fairfax plea negotiating and any Virginia criminal settlement negotiations. Too often I hear prosecutors say when not budging more favorably with settlement negotiations that the victim does not want anything more defense-favorable than that, or, with such crimes without specified purported victims as Virginia drug prosecutions and DUI prosecutions, the assistant commonwealth’s attorney may say that the police officer opposes a better deal than what is offered. First, I frequently ask the prosecutor to talk with me one on one about settlement negotiations, without the presence of the police offier nor the complainant nor the complainant’s advocating attorney. Second, the designated police officer or puported victim are not always giving their input with the prosecutor’s viewpoint provided. On top of that, the victim witness advocates — whether from the police department or the prosecutor’s office — might be giving their own pitches to the complainants about standing firm on settlement negotiations. I am here to remind the prosecutor that despite the complaints that may result from police and purported victims from the prosecutor’s taking an indeptendent line with negotiations, that the prosecutor has no choice but to do otherwise. On the flip side, sometimes a criminal complainant wants a better case outcome than the prosecutor agrees with (including when an assault complainant asks for the case to be dismissed), which is when we do hear prosecutors confirming that they have the sole choice in how to proceed with settlement negotiations, which are words that I am able to point to the prosecutor when the assistant commonwealth’s attorney tells me that the complainant objects to a better settlement agreement and that the prosecutor will not agree to anything better.

Make sure your Virginia criminal lawyer is fully prepared effectively to proceed to trial in the event that settlement negotiations do not yield an agreement

Prosecutors and criminal defendants are not obligated to engage in Fairfax plea negotiating, nor settlement discussions anywhere else in Virginia. I have had prosecutors tell me they are not settling. When prosecutors refuse to settle, the criminal defendant has the choice of proceeding to trial or doing what is called “pleading straight up” meaning pleading guilty or no contest to every count in the case, with no plea agreement, in the hopes that the judge will sentence more leniently both by recognizing acceptance of responsibility by avoiding a trial, and by avoiding the judge hearing the ugliest of the allegations (but that is not avoided with a straight-up plea, where the prosecutor is then permitted to proffer what the evidence in the case is.) I delight at going to trial and having the opportunity to obtain an acquittal, or else (if convicted) a sentence no worse than involved with the last plea offer. Make sure that your Virginia criminal lawyer delights in proceeding to trial, fully prepares for trial, and is fully capable to proceed to trial.

Fairfax criminal lawyer Jonathan Katz fully prepares for your trial, fully executes as persuasive a trial as he can, and only negotiates on your behalf with your informed consent, backed up by trial readiness. Accept no less from your Virginia criminal defense lawyer. Get a bang for your buck by meeting with Jon Katz about the best possible approach for obtaining the most favorable outcome for your case. Call 703-383-1100, email info@BeatTheProsecution.com or text 571-406-7268, to obtain your free in-person strictly confidential initial consultation with Jon about your court-pending prosecution. Usually Jon can meet with you within a business day of your contacting us.