Virginia judges will lose veto over unbiased party-agreed dismissals

Virginia judges will lose their dismissal visa card, both against self-styled reformist prosecutors and other commonwealth’s attorneys, says Fairfax criminal lawyer

Virginia judges — at least some in Northern Virginia, Norfolk and Portsmouth courts — have engaged in pushback of one sort or another after self-styled reformist chief prosecutors took office there. As a Fairax criminal lawyer, I am delighted to report that on October 21, 2020, Virginia’s governor signed into law H.B. 5062, the bill that eliminates this judicial veto for all but unlawfully-biased case dismissals.

What does Virginia’s new judicial dismissal veto override statute say?

H.B. 5062 amends Virginia Code § 19.2-265.6, by providing the following as to Virginia judges: “ Upon motion of the Commonwealth to dismiss a charge, whether with or without prejudice, and with the consent of the defendant, a court shall grant the motion unless the court finds by clear and convincing evidence that the motion was made as the result of (i) bribery or (ii) bias or prejudice toward a victim as defined in § 19.2-11.01 because of the race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin of the victim.”

When will H.B. 5062 take effect, and what does it mean for restorative justice?

My understanding is that unless provided otherwise, legislation passed during the recent Virginia special legislative session takes effect around three months after the legislation is signed into law by the governor, which here was signed on October 21, 2020. This legislative update removes a significant barrier by Virginia judges to restorative justice, whereby the criminal defendant and alleged victim work towards a possible mediated resolution of the case.

H.B. 5062 also enables all criminal cases to be disposed of as suspended imposition of sentences by Virginia judges

Sometimes Virginia misdemeanor prosecuti0ns are resolved through a prosecutor-defense agreement for a suspended imposition of sentence (“SIS”), whereby the case gets dismissed unless the court finds a probation violation, and whereby the case gets convicted and sentenced — with no trial — in the event of a finding of a probation violation. S.B. 5062 makes suspended imposition of sentence available for all Virginia criminal charges by amending Virginia Code § 19.2-298.02(A)  as follows to allow Virginia judges to permit such suspended impositions of sentence: “A trial court presiding in a criminal case may, with the agreement of the defendant and the Commonwealth, after any plea or trial, with or without a determination, finding, or pronouncement of guilt, and notwithstanding the entry of a conviction order, upon consideration of the facts and circumstances of the case, including (i) mitigating factors relating to the defendant or the offense, (ii) the request of the victim, or (iii) any other appropriate factors, defer proceedings, defer entry of a conviction order, if none, or defer entry of a final order, and continue the case for final disposition, on such reasonable terms and conditions as may be agreed upon by the parties and placed on the record, or if there is no agreement, as may be imposed by the court. Final disposition may include (a) conviction of the original charge, (b) conviction of an alternative charge, or (c) dismissal of the proceedings.”

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense agaings felony, misdemeanor and DUI prosecutions. Call 703-383-1100 for a free in-person confidential consultation with Jon Katz about your court-pending case .