Virginia plea deals need to clear hurdles of no prosecutorial amendment or revocation, and no judicial rejection, says Fairfax criminal lawyer

Virginia plea deals are not guaranteed to be a reality merely because a criminal defendant accepts a plea offer. First is the risk that the prosecutor will back out from the deal before a judge accepts the agreement, or that the prosecutor will threaten to walk away from the deal if the defendant does not agree to an amendment thereto. Second is the risk that your Virginia sentencing judge will not agree to the party-agreed sentence or sentencing cap. As a Fairfax criminal lawyer, I felt this issue is timely to address in the light of the defense secretary’s withdrawal — after an uproar by many in Congress — from a plea deal that would have saved the alleged 911 murder mastermind and two others from the death penalty. The Virginia Supreme Court, sadly, provides prosecutors wide leeway to back down from plea deals before the court actually accepts the defendant’s plea of guilty, no contest / nolo contendere, or Alford. Watkins v. Virginia, 27 Va. 473 (1998) (en banc) (reversing the Virginia Court of Appeals panel that determined that a “middle ground exists when the defendant, although not having pled guilty, has taken some ‘other action’ pursuant to a plea agreement” to justify enforcing the agreement). The United States Supreme Court rejects assuring specific performance for any prosecutor’s backing out from a plea deal. Kernan v. Cuero, 138 S.Ct. 4, 8 (2017) (in “Mabry v. Johnson, 467 U.S. 504 (1984), the Court wrote that ‘Santobello expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea. ‘” (citations omitted)).

Prosecutorial withdrawals from Virginia plea deals need to be met with decisive action by your criminal defense lawyer

Although infrequent, prosecutors in some of my cases have demanded amendments to their plea offers that I had already accepted (with my client’s agreement). One, who not long after had the temerity to then invite me to be in his social media network, told me that his supervisor had rejected an aspect of our already-settled plea deal that was very important to my client even though it was a more minor part of our negotiation and was not assured to be accepted by the judge. He pointed out that Virginia caselaw is on his side to walk away from the plea offer if my client did not accept his demanded deletion of the foregoing aspect of the plea agreement. I replied that if he did not keep our original plea offer in place that this would harm my view of his commonwealth’s attorney’s office. The prosecutor responded that he did not think his superior cared. Sweet poetic justice came when a few year later the chief prosecutor in this county lost the primary election, probably in no small part after dozens of criminal defense lawyers signed onto a very public letter against the “business as usual” goings on at this prosecutor’s office. I am not talking of goings on that violate any laws, but goings on that demanded more protection for criminal defendants. Consequently, when the law is not on my side to enforce a plea deal, the chief prosecutor or their subordinates may still stick to the deal after all after I very clearly spell out that a prosecutor’s backing out from a settled deal means that fewer criminal defendants will settle cases with their office, and that their office’s reputation will be tarnished with criminal defense lawyers.

Judicial rejection of Virginia plea deals might not find favorable Fairfax judicial treatment of renewed agreements before a different judge

Judicial rejection is permitted of the sentencing aspects of Virginia plea deals. Virginia Code § 19.2-254.  When that happens, the parties are free to present a plea deal to a new judge, with that caveat that one Fairfax Circuit Court judge has said from the bench that he and his colleagues are formulating confirmation that if Judge A rejects a plea deal that Judge B will not accept it. Judges need to be able to have more independence than that. Moreover, not-yet-appointed judges should not be bound by such an agreement if reached by the sitting Fairfax County Circuit Court judges.

Overcovering risk is the solution to possible prosecutorial and judicial roadblocks to a favorable plea disposition in your criminal case

Overcover risk against Virginia plea deals falling through as a result of prosecutorial or judicial decisionmaking. Make sure that you and your lawyer can regroup if your settled plea agreement falls through. Engage in substantial relevant self improvement in order for the prosecutor and judge to know how committed you are to rehabilitation, for them to not want to throw a roadblock in effectuating your negotiated plea deal.

Fairfax criminal lawyer Jonathan Katz focuses virtually all of his law practice on pursuing the best defense against Virginia felony, misdemeanor and DUI prosecutions. Being prosecuted can feel scary, but you have the option (the only option) to obtain the best possible attorney for you, and to fight like hell alongside your lawyer for as much justice as possible. With Jon Katz you get a free in-person strictly confidential initial consultation about your court-pending prosecution. Schedule your free consultation with Jon at 703-383-1100, info@BeatTheProsecution.com, and (text) 571-406-7168.