Favorable judges are not guaranteed, says Fairfax criminal lawyer

Favorable judges are not guaranteed for your court case. As a Fairfax criminal lawyer, I know that judges run from the sufficiently patient to those with short fuses, from those who have high equanimity to those who are cranky and even angry, from those who have few prejudices to those who are biased to the prosecution or heavily biased against women and against immigrants and non-white people, and from those who are intellectually qualified to those who either do not have sufficient capacity to review and apply the law to the facts (and to sufficiently determine the facts) or simply do not make sufficient effort to do so. At the very minimum, this means that you need a lawyer who knows this reality and knows how to deal with it. As my great criminal defense teacher Stephen C. Rench taught me, a challenging judge is like a boulder in the middle of the road. You can either driver around the boulder or give yourself a hernia trying to lift and move it. This also means that merely because a judge smiles and acts affable does not mean that his or her decisions and actions will not come down on many Virginia criminal defendants like a sledghammer.

How do I win my criminal case before a barking judge who does not seem favorable to me?

A judge does not need to appear to be favorable in order to render a decision that gives you a victory. As a for instance, one particular judge whom I never believed belonged on the bench — for instance, he too often got hot and bothered over well reasoned legal arguments with which he disagreed, rather than simply granting or rejecting the argument — once handed me a stunning bench trial acquittal in a marijuana possession case (when marijuana possession was still a crime) that did not seem to have any sufficient basis. However, too many judges make too many improvident decisions, that I at least want as many of those improvident decisions to be in my favor. This acquittal came after the judge refused my efforts to ask questions of the drug chemist about the procedures he used to determine that this was marijuana. When the judge so refused, I had a choice between letting the judge know the vituperative comments I was ready to make to some confidant colleagues about his doing so or to immediately regroup with the knowledge that a great criminal defense lawyer needs to focus on winning the war and not getting debilitated over any loss.

What do I do when my trial judge seems to be trying to divide and conquer over me and my Virginia criminal lawyer?

Some judges are far from favorable and seem bent on intimidating a Virginia criminal defendant against going to trial or into a course of action opposite from the direction in which the criminal defense lawyer is going. For instance, when I walked into the courtroom for a jury trial on a public intoxication prosecution for which I obtained an acquittal, the first words out of the judge’s mouth in the open courtroom was whether this case could settle. I said no. (Mind you, public intoxication is a non-jailable offense that only carries a maximum $250 fine.) When I asked to be able to look at the jury list before the jury’s entrance, instead the judge called in the jury and I was only then handed the list. Whether correct or not, I saw the judge as trying to intimidate my client into waiving his right to a trial and to plead guilty or no contest / nolo contendere to this prosecution, possibly in order to save judicial resources of a jury trial. On the other hand, Virginia law permits a jury trial even on an appeal to the Circuit Court from a traffic infraction, so if the majority of the public does not want that state of affairs, they can seek to change the law through the law changing process; the court is not the place for that. After the jury acquitted my client, I engaged the judge briefly about a past-time of mutual interest to us both. I figured that he will be my judge in future cases, and it is better to understand him better as a person than to do the opposite.

What do I do if my judge rejects the plea deal reached by my Virginia criminal defense lawyer and the assistant commonwealth’s attorney?

Judges do not always accept the plea deals reached between a Virginia criminal defense lawyer and the assistant commonwealth’s attorney / prosecutor. Yes, a judge has no obligation to accept a party-agreed sentence or sentencing cap, and may be all the less likely to do so when the victim so objects to the judge. However, a judge is not permitted to enforce a plea deal that the judge has held under advisement when the parties substitute that for another plea deal. Thomas v. Commonwealth of Virginia, ___ Va. ___, 2024 WL 2754957 (2024). In Thomas, on the day his felony wounding case was scheduled to proceed to a jury trial, the parties instead presented a plea agreement to the judge. The judge excused the jury and took the plea under advisement so he could consider it more closely. Covid-19 intervened, the court eventually asked parties to bring more of their pending cases before the court, and the parties presented a misdemeanor assault plea (more favorable to the defendant than the original deal) before a different judge, who accepted the deal, only for the original judge to vacate the better misdemeanor plea deal. The Virginia Court of Appeals refused to disturb this state of affairs, and Thomas obtained no vindication until a unanimous Virginia Supreme Court reversed the trial court’s vacating of his misdemeanor plea agreement.

Virginia criminal defendants have the choice to play dead / throw in the towel or to fight, fight, fight

The rough and tumble of Virginia court can intimidate the faint of heart, whether that faint of heart be in the criminal defense lawyer or their client. Criminal defense lawyers need to recognize that all sorts of landmines and booby traps will be in the body of the law and in many courtroom situations that are far from favorable. That is not the time to freeze but the time to shine and rise to the occasion, just as Russell Crowe’s Maximus Decimus Meridius character in Gladiator did not complain about the opponent swinging a mace at his teammates as they emerged into the Colosseum, but instead reversed this state of utter heartless brutishness to lead his team into victory. For very good reason, I have a film cell montage from Gladiator hanging behind my office chair, so that each time I enter my office, I am reminded that my victories for my clients is not due to a system that is necessarily sufficiently fair, but often despite it.

Fairfax criminal lawyer Jonathan Katz for decades has practiced martial arts, and sees criminal defense as battling for justice without expecting just laws and just rulings, but welcoming them when they are achieved. Jon Katz relentlessly pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Secure your free in-person confidential initial consultation with Jon about your court-pending prosecution, at 703-383-1100, info@BeatTheProsecution.com, and (text) 571-406-7268.