The Judge v. the Sheriff

In Petersburg, Virginia:

The Judges were unhappy because the Circuit Court building was being left unguarded when court was not in session. They get together with the Sheriff and after the meeting issue an ORDER that the courthouse be guarded at all times when it is open. For a year it is.

Then the Sheriff, citing lack of funds, stops providing security for the courthouse after court has ended. The Judge closes the building and puts up a sign giving a number to call if anyone needs access (the clerk's office and law library are both in the courthouse). The Sheriff takes the sign down. That same day, the Judge issues an ORDER and sign to post on the door:

It appearing to the Court that the Sheriff of the City of Petersburg has ceased to provide security for the Courthouse when Court is not in session, it is ORDERED that in such times when security is not provided, the Courthouse shall be locked. Entrance shall be had only by calling 555-1234. The Clerk of this Court is directed to post a copy of this Order on the front door of each Courthouse.

That same day, the Sheriff takes the ORDER and sign down.

The next day the Judge goes to the Sheriff's office to get the papers back. After some fussing back and forth, the Sheriff gives her the sign but not the ORDER, because it is "inaccurate." The Judge has the Sheriff tried for contempt. The Sheriff was found guilty of 1 count of civil contempt and 3 counts of criminal contempt.

On Appeal: Among other things the Sheriff argues the original order was improper. The Court of Appeals finds:

Clearly, the trial court has subject matter jurisdiction to address courtroom and courthouse security issues. Whether the trial court could order security when the court is not in session is not jurisdictional. The error, if any, would be as to whether the trial court had the authority to exercise its subject matter jurisdiction. If the court lacks authority to exercise its subject matter jurisdiction, the order would be erroneous or voidable, not void, and appellant's remedy would be a direct appeal, not disobedience.

The Sheriff also argues that because of a lack of funding it was impossible to keep someone at the courthouse when court was not in session because he has to staff the jail. The Court of Appeals finds:

Far from impossibility, appellant made a conscious decision to fulfill one set of duties to the neglect of the court order. Further, absent a timely effort by appellant to challenge the validity of the order before he was held in contempt, the claim that appellant was unable to comply with the order due to impossibility based on a lack of funding is irrelevant. We find the trial court did not err in not admitting evidence of "impossibility."

[note] This holding strikes me as problematic. I don't know how long the window is to appeal a sua sponte ORDER of a court which is not related to either a criminal or civil case - it's never been an issue in any of my cases - but I doubt it is as long as a year. When the City Council did not adequately fund the Sheriff's Department it was most likely too late to appeal the ORDER, even if it were origininally voidable. If the City Council refuses to fund the Sheriff a couple years after it's too late to appeal an ORDER there's not a whole lot he can do about it. [/note]

In the end the appeal succeeds. The reason? Judges are not allowed to testify as to court matters in Virginia and the Judge testified:

Code sec 19.2-271 states in part: "No judge shall be competent to testify in any criminal or civil proceeding as to any matter which came before him in the course of his official duties."
. . . .

[However, a judge can testify if she is the victim of a crime.]
. . . .
Because Judge Baskervill was not a victim of a crime committed by Sheriff Epps, we conclude that the trial court erred in allowing Judge Baskervill to testify. Although the court erred in admitting Judge Baskervill's testimony, that error does not require reversal if we determine the error was harmless. The Commonwealth has offered no argument that the error was harmless, and we perceive no basis for such a holding. While appellant's testimony was in accord with Judge Baskervill's, we cannot say that it is harmless error for the court to have allowed Judge Baskervill's testimony in light of our inability to determine why appellant chose to testify.

So the whole case goes back down. You get the feeling that the Court of Appeals was trying to send it back so that perhaps this could be settled in a rational, civilized manner ("now, now children, play nice").

Outside of the absurdity of all of this, the legal point which stands out to me is that if a defendant testifies it appears that every bit of harmless error analysis goes out the window for anything done in the prosecutor's case in chief. That's a point to file away for future appeal writing.