Dec 15, 2015 Rampantly insufficient guilty/no contest plea colloquys in Virginia General District Courts
Too often in Virginia General District Courts, I see judges take guilty and no contest pleas from defendants without sufficiently verifying that they are pleading knowingly and voluntarily pursuant to Boykin v. Alabama, 395 U.S. 238 (1969). This is in stark contrast to the Maryland and federal courts, where judges typically conduct a more in-depth inquiry to assure that the defendant is pleading guilty knowingly and voluntarily.
Let us look for instance at the plea sheet typically used in Fairfax County General District Court. Absent therein is any reference to the defendant’s presumption of innocence, the prosecutor’s obligation to prove the defendant guilty beyond a reasonable doubt, nor the risk of a probation or parole violation had the defendant been on probation or parole at the time of the alleged crime. The form says the defendant may refuse to testify at trial, but omits saying that not testifying may not be used against the defendant. Also nice to add to the inquiry would be to advise the defendant of his or her right to appeal the conviction within ten days for a new trial.
The Virginia Supreme Court rules recommend a much more detailed guilty/no contest plea coll0quy for felony cases. This level of detail should also be followed with misdemeanor cases.
I should take a page from Alexandria lawyer Victor Glasberg (who has deeply inspired me for nearly a quarter century), by raising my concerns about the guilty/no contest plea colloquys with the appropriate judicial authorities directly or through organized bar committees. Vic waited three years before he saw positive results on his urging that criminal defendants be advised that adverse immigration consequences can result from certain convictions,e, even though the resulting suggested Virginia Supreme Court warning gives limited meaningful detail and puts no teeth nor indigent defense funding into the United States Supreme Court’s Padilla decision obligating criminal defense lawyers to advise their clients about immigration risks from a conviction. Virginia Legal Ethics Opinion 1876 (March 2015) warns prosecutors about letting unrepresented non-U.S. citizens plead guilty or no contest without being advised of immigration risks from a conviction.
The Washington Post reports that letters “to the Virginia Supreme Court by Glasberg, with the threat of a federal lawsuit, resulted in a warning added to the forms signed by defendants who waive their right to a lawyer.” Before that change, the Fairfax County General District Court plea form (here is the superseded form) made no mention about immigration risks from convictions.
Guilty pleas and no contest pleas are a daily reality in the Virginia courts. If nobody entered guilty nor no contest pleas in the Virginia courts, and likely all courts, the courts’ work would become so overburdened and more expensive that courthouses’ work would burst at the seams.
Criminal defendants live with the damage from convictions their entire lives. They should be entitled to a few extra moments to better assure that they are entering guilty and no contest pleas knowingly and voluntarily.