Prepared trial lawyers go to the courthouse battlefield filled with adrenaline, ready for trial.

In numerous counties, but not all, where I practice in Virginia, the first General District Court bench trial date affords both parties in a criminal case a possibility of getting the case postponed. These cases typically are not assigned a specific prosecutor nor judge. Instead, the case is assigned to a particular courtroom that day, along with many other cases, where a particular prosecutor or set of prosecutors is assigned.

Why postpone at all? Possibly to further address new evidence or other discovery that has been obtained on the trial date. Possibly to work further on settlement negotiations.

What if the judge on the first trial date is a desirable judge for the defense? That might find the prosecutor seeking a postponement to avoid a judge favorable to the defense, whether or not the prosecutor will admit to such a motivation. When seeking a postponement when the day’s judge is desirable, the defense is taking a calculated risk that the balance of the potential benefits of postponing is not offset by the potential of getting a less desirable judge on the next court date. On the other hand, merely because a desirable judge is in the courtroom does not mean that the judge will not transfer the case to a courtroom of a judge who has a lighter docket than the original judge.

Of course, if a criminal defendant loses in General District Court, s/he can appeal for a whole new trial in Circuit court. However, an appeal comes with its risks and costs. The General District Court sentence does not limit the potential sentence if a conviction occurs in Circuit Court. If the defendant loses in Circuit Court, additional court costs are involved. Moreover, if the defendant wants to waive a jury on appeal and the prosecutor does not, the defendant might, or might not, have better chances of acquittal with a jury than a judge, but might face greater chances that the jury will recommend a significantly higher sentence than a judge would impose as a result of a bench trial conviction, and that the judge will not sufficiently reduce nor suspend any of the jury’s recommended sentence, if at all. Of course, the law entitles the defendant to withdraw his or her appeal to Circuit Court before the trial date so long as all outstanding fines and costs first are paid.

Misdemeanor charges are not merely misdemeanor charges. Depending on the alleged crime and the sentence, convictions on misdemeanors can have substantially adverse effects on security clearances, career and academic prospects, immigration status, and reputation.